SHOEMAKER et al. v. UNITED STATES, on Petition of the Commission to Select the Land for the Rock Creek Park.
147 U.S. 282
13 S.Ct. 361
37 L.Ed. 170
SHOEMAKER et al.
UNITED STATES, on Petition of the Commission to Select the Land for the Rock Creek Park.
January 16, 1893.
[Syllabus from pages 282-284 intentionally omitted]
Proceeding on behalf of the United States for the condemnation of certain lands for the purpose of establishing a park known as 'Rock Creek Park,' in the District of Columbia. By a final judgment of the court below the title was declared to be vested in the United States, and from that decree certain of the property holders bring error. Affirmed.
Statement by Mr. Justice SHIRAS:
Under the title of 'An act authorizing the establishing of a public park in the District of Columbia,' an act of congress was approved on September 27, 1890, (26 St. p. 492,) directing that a tract of land lying on both sides of Rock creek, and within certain limits named in the act, be secured as thereinafter set out, and be perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States. The act provides that the whole tract to be selected and condemned shall not exceed 2,000 acres, and that the cost thereof shall not be in excess of a certain amount appropriated.
It is provided that the chief of engineers of the United States army, the engineer commissioner of the District of Columbia, and three citizens to be appointed by the president by and with the advice and consent of the senate, be, and they are by the act, created a commission (a majority of which shall have power always to act) to select the land for the said park, of the quantity and within the limits prescribed, and to have the same surveyed by the assistant to the said engineer commissioner of the District of Columbia in charge of public highways.
The means to be employed in the ascertainment of the value of the lands to be selected, and in the acquirement of ownership and possession thereof by the United States, are provided for in sections 3, 4, and 5 of the act, which are as follows:
'Sec. 3. That the said commission shall cause to be made an accurate map of said Rock Creek park, showing the location, quantity, and character of each parcel of private property to be taken for such purpose, with the names of the respective owners inscribed thereon, which map shall be filed and recorded in the public records of the District of Columbia, and from and after the date of filing said map the several tracts and parcels of land embraced in said Rock Creek park shall be held as condemned for public uses, and the title thereof vested in the United States, subject to the payment of just compensation, to be determined by said commission, and approved by the president of the United States: provided, that such compensation be accepted by the owner or owners of the several parcels of land.
'That if the said commission shall be unable, by agreement with the respective owners, to purchase all of the land so selected and condemned, within thirty days after such condemnation, at the price approved by the president of the United States, it shall, at the expiration of such period of thirty days, make application to the supreme court of the District of Columbia, by petition, at a general or special term, for an assessment of the value of such land as it has been unable to purchase.
'Said petition shall contain a particular description of the property selected and condemned, with the name of the owner or owners thereof, if known, and their residences, so far as the same may be ascertained, together with a copy of the recorded map of the park; and the said court is hereby authorized and required, upon such application, without delay to notify the owners and occupants of the land, if known, by personal service, and, if unknown, by service by publication, and to ascertain and assess the value of the land so selected and condemned, by appointing three competent and disinterested commissioners to appraise the value or values thereof, and to return the appraisement to the court; and when the value or values of such land are thus ascertained, and the president of the United States shall decide the same to be reasonable, said value or values shall be paid to the owner or owners, and the United States shall be deemed to have a valid title to said land; and if, in any case, the owner or owners of any portion of said land shall refuse or neglect, after the appraisement of the cash value of said lands and improvements, to demand or receive the same from said court, upon depositing the appraised value in said court to the credit of such owner or owners, respectively, the fee simple shall in like manner be vested in the United States.
'Sec. 4. That said court may direct the time and manner in which the possession of the property condemned shall be taken or delivered, and may, if necessary, enforce any order or issue any process for giving possession.
'Sec. 5. That no delay in making an assessment of compensation, or in taking possession, shall be occasioned by any doubt which may arise as to the ownership of the property, or any part thereof, or as to the interests of the respective owners. In such cases the court shall require a deposit of the money allowed as compensation for the whole property, or the part in dispute. In all cases, as soon as the said commission shall have paid the compensation assessed, or secured its payment by a deposit of money under the order of the court, possession of the property may be taken. All proceedings hereunder shall be in the name of the United States of America, and managed by the commission.'
It is made the further duty of the commission, when they have ascertained the amount required to be paid for the land, and for expenses, to assess the same upon the lands, lots, and blocks, situated in said district, specially benefited by reason of the location and improvement of said park, in proportion to such benefits to said property; and it is provided that, if the commission shall find that the benefits are not equal to the cost and expenses of the land obtained for the park, they shall assess each tract specially benefited to the extent of the benefit thereto. If the proceeds of the assessment exceed the cost of the park, the excess is to be used in its improvement, if such excess shall not exceed the amount of $10,000; any part above that amount to be refunded ratably. The commission shall give due notice of the time and place of their meeting for the purpose of making such assessment for benefits, and all persons interested may appear and be heard. This assessment being duly made, it becomes the duty of the commission to apply to the supreme court of the District of Columbia to have it confirmed. The court is given power, after notice duly given to all parties in interest, to hear and determine all matters connected with said assessment, and to revise, correct, amend, and confirm the same, in whole or in part, or order a new assessment in whole or in part, with or without further notice, or on such notice as it shall prescribe. The act also prescribes the mode in which payment of the assessment for benefits shall be made after it is confirmed, and provides for the enforcement of such payment in the manner employed in the District for the collection of delinquent taxes. All payments under said assessment shall be made to the treasurer of the United States, and all money so collected may be paid by the treasurer, on the order of the commission, to any persons entitled thereto as compensation for land or services.
To pay the expenses of inquiry, survey, assessment, cost of lands taken, and all other expenses incidental thereto, the sum of $1,200,000 is appropriated out of any money in the treasury not otherwise appropriated, one half of which, as well as one half of any sum annually appropriated and expended for the maintenance and improvement of the park, is made a charge upon the revenues of the District of Columbia.
The act finally provides that the public park authorized and established thereby shall be under the joint control of the commissioners of said District and the chief of engineers of the United States army; and it is made their duty, as soon as practicable, to render the park fit for the purposes of its establishment, and to make and publish such regulations as they deem necessary or proper for the care and management of the same.
On May 20, 1891, the commission appointed under the provisions of the act filed a petition in the supreme court of the District of Columbia, setting out therein that they had caused a map to be made of the lands selected by them for the park, showing the location, quantity, and character of each tract or parcel of property to be taken therefor, and that they had filed and recorded the map in the public records of said District on April 16, 1891. The petitioners stated that immediately upon the filing of the map they made to each of the owners of said tracts of land an offer to purchase his property at a definite sum fixed by the commission and approved by the president of the United States, and that they had not been able, within the time limited for such purpose, to purchase, by agreement with the owners, any of the lands, except 5 of the 84 tracts selected; and the petitioners therefore prayed the court for the appointment of three competent and disinterested commissioners to appraise the land so selected, and to return the appraisement to the court. The court directed that the petition be filed in general term, and ordered that the persons named as respondents to the petition, and all others interested, or claiming to be interested, in the land described, or in any part thereof, as occupants or otherwise, appear in court on or before June 15, 1891, and show cause why the prayer of the petition should not be granted, and why the court should not proceed at that time as directed by the act of congress. The court further directed that a copy of this order be served upon such of the named respondents as should be found in said District as least seven days before June 15, 1891, and that a copy thereof be duly published in the periodical press of the District.
After the petition was filed, Pierce Shoemaker, one of the respondents thereto, died; and, his death being suggested to the court, Louis P. Shoemaker, Francis D. Shoemaker, Abigail C. Newman, and Clara A. Newman, heirs at law and devisees of the said Pierce Shoemaker, deceased, were on June 2, 1891, made parties respondent in his place and stead.
The said Louis P. Shoemaker and Francis D. Shoemaker, executors of the last will and testament of the said Pierce Shoemaker, deceased, appeared in court June 15, 1891, and moved that the petition be dismissed. This motion was based upon various grounds, each one of which impeached the constitutionality of the said act, and the validity of proceedings under it. These grounds were, in substance, that two members of the commission were appointed by congress, and not by any executive officer or court; that the act provides that the president shall perform a judicial function in participating in the appraisement of the several tracts of lands to be selected for the park, and in adjudicating upon awards respecting the same; that the approval or disapproval of the said appraisement is left to the president, who is virtually a party to the condemnation proceedings, and not left to an impartial judicial tribunal to decide upon the question of just compensation for the property; that the amount to be paid for the property is limited to a fixed sum, regardless of its adequacy as just compensation therefor; that congress, by the act, attempts to exercise the right of eminent domain within the District of Columbia for purposes foreign to the needs and requirements of its exclusive power therein; and that such exercise is in violation of its compact made with the state of Maryland upon the cession of territory thereof to the United States, that nothing contained in the act of cession passed by the assembly of Maryland, should 'be so construed to vest in the United States any right of property in the soil, as to affect the right of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States.'
This motion was denied, the court being of opinion that it is not unconstitutional for the legislature to intrust the performance of particular duties to officials already charged with duties of the same general description, and that, besides, as the majority of the commission is empowered by the law to act in all cases, the three civilian members might legally discharge the duties of the commission, independently of the two army officers, if the appointment of the latter was irregular; that no judicial power is devolved upon the president by the act, he being only vested with authority either to acquiesce in the judgment of the assessors, or to decline on behalf of the United States to accept the property, and having no power to take the property in disregard of their assessment; that the limitation by the act of the amount to be paid for said lands is not unconstitutional, as the appraisers are bound, as competent and disinterested commissioners, to return what they believe is the just value of the properties, regardless of any restriction in the act as to the cost thereof; that the condemnation of land for a public park is a taking of property for public uses within the meaning of the constitution; that no relinquishment of the federal power of eminent domain can be deduced from the legislation relating to the acquisition of said territory from the state of Maryland by the United States; and that the United States could not have bound itself by any such condition, even though distinctly set forth in the act of cession. U. S. v. Cooper, 19 Wash. Law Rep. 466.
The said respondents thereupon asked leave to file a demurrer to the petition. This being refused, they prayed in open court the allowance of a writ of error, returnable to this court, to review the judgment of the general term overruling the motion to dismiss the petition. This application was denied because that judgment was interlocutory. Application was then made to one of the justices of this court, and he denied it.
The court of the District of Columbia then made an order appointing three citizens of the District, whom it adjudged to be competent and disinterested, to appraise the values of the land selected for the park, with directions to return the appraisement into court, and to perform all other duties imposed upon them by the act of congress.
The said respondents, who are the present plaintiffs in error, then presented to the court of the District a form of oath which they prayed might be administered to said appraisers, and also certain instructions which they prayed the court to give them. The court refused to administer the oath, and to give the instructions, proposed by plaintiffs in error, and a different oath was administered, and different instructions given to said appraisers by the court. Exceptions to this action of the court were filed by plaintiffs in error August 1, 1891.
The said appraisers entered upon the discharge of their duties. At the hearing before them evidence was offered by the plaintiffs in error for the purpose of sustaining certain allegations of the existence of gold in paying quantities in the tract of land shown on the map as tract No. 39. This evidence having been received by the appraisers, the United States moved the court to strike it from the record. This motion was sustained, and the appraisers were directed not to consider that evidence in making up their award. The court held that, if any deposits of gold exist in said land, they are the property of the United States; that the state of Maryland was the owner of all mines of gold or other precious minerals within its borders, by virtue of its confiscation of the property of the lord proprietary in 1780, who had never parted with his title, held under his charter from Charles I., to such mines; and that the legislature of the state of Maryland, by its act of cession, transferred its interest in any possible gold mines in the ceded territory to the United States. During the argument upon that motion the plaintiffs in error showed the court that any resurvey patent granted by the state of Maryland in 1803, under which the plaintiffs in error immediately claim title, there is no reservation of mines, and contended that as this patent was based upon a warrant of resurvey dated May 12, 1800, nine months before congress assumed jurisdiction in the District of Columbia, the grantee under it acquired an equitable title to the land patented by virtue of that warrant. The court held that under the law of Maryland no equitable title could be created until the return of the certificate of survey to the land office, and that, as the patent does not show that such certificate was returned to the office, and as the party obtaining the warrant had, under the law, two years in which to have the certificate returned, the presumption would be that it was not returned until after 1801, and that, therefore, the grantee could take no title whatever under the patent until its issue in 1803, and, further, that the state of Maryland could grant no title to lands within the ceded territory after the act of cession in 1791, and that the proviso therein with reference to the continuance of the jurisdiction of the laws of Maryland over persons and property in the ceded territory until congress should provide for the government thereof applied only to laws affecting private rights, and did not continue the operation of the land laws of Maryland as to public lands owned by the state within that territory.
The plaintiffs in error then applied to the appraisers, November, 1891, for permission to offer newly-discovered evidence relating to the ownership of the alleged gold deposits, to the end that they might move the court in general term, upon the strength of such evidence, to rescind the order directing the appraisers to strike out of the record the evidence relating to the existence of gold in the property, and requested the appraisers to submit their application to the court, in general term, for further instructions. This application was submitted to the court; and the plaintiffs in error, on December 4, 1891, moved that the appraisers be instructed to receive the additional evidence touching the ownership of the alleged gold deposits in said tract No. 39, which motion was overruled. The new evidence tended to show that certain lands which the court had held to be subject to a reservation of 'royal mines' in a patent granted by the lord proprietary in 1772 were covered in part by a patent granted by him in 1760, which did not contain such reservation. The plaintiffs in error therefore contended that, though the patent of 1772 was original as to part of the lands described therein, it was, with reference to the lands granted in 1760, which lands include the said tract No. 39, a patent of confirmation only, and as such did not create a new estate, but simply recognized or reaffirmed the former one. The new evidence further tended to show that the grantee under those patents conveyed his estate to two persons as tenants in common; that the estate of one of these persons was confiscated as property of a British subject, and was afterwards, in 1792, conveyed by the state to the mediate grantor of the plaintiffs in error, without any reservation of said mines. The court was of opinion that the acceptance of a new grant from the lord proprietary, such as that described, necessarily involved the surrender of the original title, and therefore the patent of 1772 was original as to all the land it purported to grant or confirm, and that the conveyance made by the state in 1792 did not purport to convey anything else than the property confiscated, which was held subject to the reservation aforesaid, and that such conveyance made after 1791 could not be operative.
On December 19, 1891, the appraisers submitted their report, and a copy of the proceedings before them, to the court, and the court ordered that the report, together with the testimony and exhibits, be filed.
The plaintiffs in error filed their exceptions to this report January 4, 1892, said exceptions being based upon the grounds, among others, that the act of congress is unconstitutional, and all proceedings based thereon void; that the aggregate of the values, found by the assessors, of the lands included in the park, is in excess of the appropriation made by congress; that the actual values of the lands are largely in excess of the values fixed by the appraisers; that the commissioners, in appraising the values of the property, disregarded certain parts of the evidence in respect thereto; that the attorney representing the government did not produce witnesses to impartially testify touching the value of said lands, but on the contrary placed a list of prices fixed by said park commission in the hands of divers persons proposed to be used as witnesses, for the purpose of affecting their judgment as to values, and to guide them in reaching values to correspond with those thus furnished them.
The plaintiffs in error contended that into the present act should be read the sundry civil appropriation act of August, 1890, wherein it is provided that the valuation by appraisers to be appointed by the court, of lands to be purchased for the government printing office, shall be confirmed by the court,—said appropriation act providing that after its passage, in all cases of the taking of property in said District for public uses, its provisions respecting such condemnation and appraisement shall operate,—and contended that under said appropriation act the court should review the evidence and proceedings before the appraisers appointed in the present instance, and decide whether the values fixed by them afforded just compensation for the property taken.
These exceptions were overruled, and the report confirmed. The constitutional questions involved having been already passed upon, the court decided, in overruling said exceptions, that the restriction in the act as to the cost of the lands is not a restriction upon the duty of the court to confirm the appraisement, but a restriction upon the government's finally securing the land, since it cannot be discovered whether or not the value is in excess of the appropriation until the court has discharged its duty of assessing the land; that as the evidence before the appraisers was conflicting, and the result simply an estimate based upon a comparison of the opposing opinions of witnesses, it cannot be said that the verdict was contrary to the evidence; that, as to the objection that lists of values fixed by the park commission were furnished to witnesses, an expert witness has a right to qualify himself by comparing his views with those of others, and to enlighten his judgment by any means which conduce to the formation of a reliable opinion, as, after all, he simply gives an opinion; that as a general rule the court has no right to review an appraisement simply because of error of judgment, if such has been manifested, on the part of the appraisers, as to value, and the said sundry civil appropriations act does not modify the rule; and that under said appropriations act the court must confirm the appraisement, as a matter of course, if the appraisers have discharged their duty, and if there is no legal ground for setting their report aside.
The park commission, in consideration of the limitation in the act with the respect to the amount to be paid for the lands, and the difficulties resulting from an appraisement of values, which, when added to the amount paid for tracts purchased and for expenses, would exceed the appropriation, on March 11, 1892, submitted for the inspection of the president a copy of the map, showing by red lines thereon the boundaries of a reduced area within the limits of the lands first selected, formed by the omission of certain tracts originally included. A letter of the park commissioner anticipating these difficulties has been referred to the attorney general; and in his opinion thereon, dated April 10, 1891, he states that, if the assessed value of the land in the court proceedings exceeds the appropriation, the commission may exercise its discretion to pay for the land they regard as most desirable.
In conformity with this interpretation of the act, the park commission reduced the area of the land proposed to be taken to within the limits indicated by red lines on the said map, and having shown to the president the cost of the lands within the reduced area, together with all expenses, requested him to decide the values appraised to be reasonable. In response to this, by his letter to the park commission dated April 13, 1892, the president states his decision that the values fixed by the appraisers appointed by the supreme court of said District under the act are reasonable.
The park commission then filed a petition in said court April 19, 1892, presenting the decision of the president, and showing that each and all the owners of said parcels, the assessed values of which had been so decided to be reasonable, had failed and neglected to demand or receive from the court those values, and that said owners claimed interest on their respective assessments from the date of the filing of the said original map. The petitioners therefore prayed the court to pass an order authorizing them to pay into court the assessed values of all of said parcels of real estate.
On May 2, 1892, the said respondents, now plaintiffs in error, moved to dismiss the petition on the grounds, among others, that the assessment of only a part of the lands shown on the map as originally prepared had been acted upon by the president; that no proceedings had been instituted on the basis of the reduced area, nor any map filed other than the original map; that the park commission, having selected lands for the park, and filed a map thereof, had no power to reduce the area of the lands; and that, for about a half mile along said Rock creek, lands taken for the park lie upon only one side thereof, whereas said act provides that the park is to lie on both sides of said creek.
The court denied the motion, interpreting the act to express an absolute intent that there shall be a park on Rock creek, and to give authority to the park commission, after making their original selection of lands for the park, to amend their work by abandoning such parcels as they were not authorized by the appropriation to purchase. The operation of the order denying this motion was suspended, however, so far as it might affect the property of the plaintiffs in error, until the further order of the court.
The plaintiffs in error then presented to the court an answer to the petition, setting up the same grounds of objection thereto as urged by them in their motion to dismiss the last-named petition, and requested that the answer might be filed. The court, finding no point presented in the answer not already passed upon, denied the request to have the same filed, and ordered, May 24, 1892, that the United States pay forthwith into the registry of the court the values, without interest thereon, appraised by the appraising commissioners theretofore appointed by the court, including the values of the property of plaintiffs in error.
Upon motion of the park commission the court, on July 13, 1892, granted an order to show cause why the title in fee simple to the property of plaintiffs in error should not be declared by the court to be vested in the United States. The plaintiffs in error filed an answer to this rule, reserving therein all the objections theretofore taken by them during the progress of the said proceedings. The court overruled the objections, and ordered and decreed, July 16, 1892, that the fee-simple title to each and all of the tracts of land represented by plaintiffs in error is vested in the United States, and that the owners of said tracts forthwith deliver up possession of their respective holdings to the park commission, or its executive officer. On July 19, 1892, upon application of the United States, a special auditor was appointed to ascertain and report to the court the names of the persons respectively entitled to the appraised values of the tracts of lands selected for said park, claimed by the plaintiffs in error, and to report separately upon each tract or road within the boundaries thereof.
Thereupon plaintiffs in error sued out a writ of error to bring this final judgment and the record in the condemnation proceedings before this court for review.
In addition to the alleged errors above indicated, the plaintiffs in error now say—First, that the United States had no right, after filing the first map of the land selected, to abandon the taking of any part of the land condemned; and, secondly, that the assessment for benefits provided for by the act of congress is beyond the power of the government, and that, therefore, the act is void.
S. Shellabarger, J. M. Wilson, and T. A. Lambert, for plaintiffs in error.
R. Ross Perry, C. C. Cole, and Hugh T. Taggart, for defendant in error.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.
In the memory of men now living, a proposition to take private property, without the consent of its owner, for a public park, and to assess a proportionate part of the cost upon real estate benefited thereby, would have been regarded as a novel exercise of legislative power.
It is true that, in the case of many of the older cities and towns, there were commons or public grounds, but the purpose of these was not to provide places for exercise and recreation, but places on which the owners of domestic animals might pasture them in common, and they were generally laid out as a part of the original plan of the town or city.
It is said, in Johnson's Cyclopaedia, that the Central park of New York was the first place deliberately provided for the inhabitants of any city or town in the United States for exclusive use as a pleasure ground for rest and exercise in the open air. However that may be, there is now scarcely a city of any considerable size in the entire country that does not have, or has not projected, such parks.
The validity of the legislative acts erecting such parks, and providing for their cost, has been uniformly upheld. It will be sufficient to cite a few of the cases. Commissioners v. Armstrong, 45 N. Y. 234; In re Commissioners Central Park, 63 Barb. 282; Owners of Ground v. Mayor of Albany, 15 Wend. 374; Holt v. Somerville, 127 Mass. 408; Foster v. Commissioners, 131 Mass. 225, 133 Mass. 321; County Court v. Griswold, 58 Mo. 175; Cook v. Commissioners, 61 Ill. 115; Kerr v. Commissioners, 117 U. S. 379, 6 Sup. Ct. Rep. 801. In these and many other cases it was, either directly or in effect, held that land taken in a city for public parks and squares, by authority of law, whether advantageous to the public for recreation, health, or business, is taken for a public use.
In the case cited from the Missouri Reports, where the legislature had authorized the appropriation of land for a public park for the benefit of the inhabitants of St. Louis county, situated in the eastern portion of the county, near to and outside of the corporate limits of the city of St. Louis, it was held that this was a public use, notwithstanding the fact that it would be chiefly beneficial to the inhabitants of the city, and that the act was not unconstitutional.
The adjudicated cases likewise establish the proposition that, while the courts have power to determine whether the use for which private property is authorized by the legislature to be taken is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made.
A distinction, however, is attempted in behalf of the plaintiffs in error between the constitutional powers of a state and those of the United States, in respect to the exercise of the power of eminent domain, and this distinction is supposed to be found in a restriction of such power in the United States to purposes of political administration; that it must be limited in its exercise to such objects as fall within the delegated and expressed enumerated powers conferred by the constitution upon the United States, such as are exemplified by the case of post offices, customhouses, courthouses, forts, dockyards, etc.
We are not called upon, by the duties of this investigation, to consider whether the alleged restriction on the power of eminent domain in the general government, when exercised within the territory of a state, does really exist, or the extent of such restriction, for we are here dealing with an exercise of the power within the District of Columbia, over whose territory the United States possess not merely the political authority that belongs to them as respects the states of the Union, but likewise the power 'to exercise exclusive legislation in all cases whatsoever over such District.' Const. U. S. art. 1, § 8, cl. 17. It is contended that, notwithstanding this apparently unlimited grant of power over the District, conferred in the constitution itself, there was a limitation on the legislative power of the general government contained in the so-called 'act of cession' by the state of Maryland, (Act 1791, c. 45,) a proviso to which is in the words following: 'Provided, that nothing herein contained shall be so construed to vest in the United States any right of property in the soil as to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States.' It is said that the acceptance by the United States of the grant constituted a contract between Maryland and the United States, whereby, in view of the foregoing language, the landowner was to be protected against any exercise by the general government of the sovereign power of eminent domain. It is sufficient to say that the history of the transaction clearly shows that the language used in the Maryland act referred to such persons as had not joined in the execution of a certain agreement by which the principal proprietors of the Maryland portion of the territory undertook to convey lands for the use of the new city, and their individual rights were thus thought to be secured. The provision had no reference to the power of eminent domain, which belonged to the United States as the grantee in the act of cession.
This position, contended for by the plaintiffs in error, was raised in the case of Chesapeake & O. Canal Co. v. Union Bank of Georgetown, in the circuit court of the United States for the District of Columbia, and Cranch, C. J., said: 'The eighth objection is that, by the Maryland act of cession to the United States of this part of the District of Columbia, (Act 1791, c. 45, § 2,) congress is restrained from affecting the rights of individuals to the soil, otherwise than as the same should be transferred to the United States by such individuals; and it is contended that this prohibits the United States from taking private property in this District for public use, and that the right of sovereignty, which Maryland exercised, was not transferred. We think it is a sufficient answer to this objection to say that the United States do not, by this acquisition or by the charter to the Chesapeake & Ohio Canal Company, claim any right of property in the soil. They only claim to exercise the power, which belongs to every sovereign, to appropriate, upon just compensation, private property to the making of a highway, whenever the public good requires it.' 4 Cranch, C. C. 75, 80.
But this contention can scarcely have been seriously made in view of the explicit language of the Maryland act in its second section 'that all that part of said territory called 'Columbia,' which lies within the limits of this state, shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the congress and government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the constitution of government of the United States.' Mattingly v. District of Columbia, 97 U. S. 687, 690; Gibbons v. District of Columbia, 116 U. S. 404, 6 Sup. Ct. Rep. 427.
Proceeding upon the conclusion that the United States possess full and unlimited jurisdiction, both of a political and municipal nature, over the District of Columbia, we come to a consideration of certain objections, taken in the court below and urged here, to the validity of the statute itself, and to the proceedings under it.
There are several features that are pointed to as invalidating the act. The first is found in the provision appointing two members of the park commission, and the argument is that, while congress may create an office, it cannot appoint the officer; that the officer can only be appointed by the president, with the approval of the senate; and that the act itself defines these park commissioners to be 'public officers,' because it prescribes that three of them are to be civilians, to be nominated by the president and confirmed by the senate. This, it is said, is equivalent to a declaration by congress that the three so sent to the senate are 'officers,' because the constitution provides only for the nomination of officers to be sent to the senate for confirmation; and that it hence follows that the other two are likewise officers, whose appointment should have been made by the president and confirmed by the senate. As, however, the two persons whose eligibility is questioned were at the time of the passage of the act and of their action under it officers of the United States who had been theretofore appointed by the president, and confirmed by the senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the president and confirmed by the senate. It cannot be doubted, and it has frequently been the case, that congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.
It is true that it may be sometimes difficult to say whether a given duty, devolved by statute upon a named officer, has regard to the civil or military service of the United States. Wales v. Whitney, 114 U. S. 564, 569, 5 Sup. Ct. Rep. 1050; Smith v. Whitney, 116 U. S. 167, 179, 181, 6 Sup. Ct. Rep. 570. But, in the present case, the duty which the military officers in question were called upon to perform cannot fairly be said to have been dissimilar to, or outside of the sphere of, their official duties.
The second objection made to the validity of the act is because of certain functions to be performed by the president, which the objection characterizes as judicial, and hence beyond his legal powers, and as imcompatible with his official duties. The duties prescribed to the president are the appointment of members of the park commission; the appeoval of the price to be given for lands where an agreement has been had between the owners and the commission; and, if an agreement is not made, and a value is put upon lands by appraisers appointed under the act, the decision whether such value is reasonable. The appointment of the commission is plainly an executive duty, and the approval of the value or price, whether fixed by agreement or appraisal, cannot be said to be a judicial act. What the president decides is not whether the value is reasonable as respects the property owner, but reasonable as regards the United States. Similar provisions were contained in the act of June, 1890, condemning land for a city post office, and in the act of August 30, 1890, authorizing the acquisition of land for the use of the government printing office. The president has nothing to do with fixing the price; but, after that has been done, by agreement or by appraisers, he must decide whether the United States will take the land upon such terms, or, in other words, whether such value is reasonable.
The validity of the law is further challenged because the aggregate amount to be expended in the purchase of land for the park is limited to the amount of $1,200,000. It is said that this is equivalent to condemning the lands and fixing their value by arbitrary enactment. But a glance at the act shows that the property holders are not affected by the limitation. The value of the lands is to be agreed upon, or, in the absence of agreement, is to be found by appraisers to be appointed by the court. The intention expressed by congress not to go beyond a certain aggregate expenditure cannot be deemed a direction to the appraisers to keep within any given limit in valuing any particular piece of property. It is not unusual for congress, in making appropriations for the erection of public buildings, including the purchase of sites, to name a sum beyond which expenditures shall not be made, but nobody ever thought that such a limitation had anything to do with what the owners of property should have a right to receive in case proceedings to condemn had to be resorted to.
A further objection is made to the validity of the act by reason of the sixth section, which provides for the assessment of benefits resulting from 'the location and improvement of said park' upon lands so especially benefited.
The cases heretofore cited to show that the erection of parks in cities is a public use, in a constitutional sense, were, most of them, cases in which it was likewise held that it is competent for the legislature, in providing for the cost of such parks, to assess a proportionate part of the cost upon property specially benefited; and we need not repeat the citations.
No special request, on the subject of the legal effect of the provision in respect to special benefits, seems to have been made to the court below, and there is no specific assignment of error as to it; nor does it appear that any person having property actually assessed for special benefits is a party as plaintiff in error. We are therefore relieved from any extended consideration of this feature of the act.
Certain questions arose during the trial of the case below which are brought to our attention by bills of exception. One of these was as to the form of the oath administered to the appraisers. The defendants asked the court to administer an oath to 'appraise the value of the respective interests of all persons concerned in the land within the Rock Creek park upon the whole evidence, guided by the rules of law as furnished by this court.' This the court declined to do, and prescribed an oath to 'faithfully, justly, and impartially appraise the value or values of said parcels of land, and of the respective interests therein, to the best of their skill and judgment.'
As the statute did not prescribe any form for the oath, we do not perceive that the court exercised its discretion wrongfully in prescribing the form of oath that was used. The purpose of the defendants, in asking for the imposition of an oath in the form presented by them, would appear to have been to restrain the appraisers from being influenced by their own inspection of the lands, and to restrict them to the evidence or estimates that should be adduced before them. Whether this be so or not, the oath actually administered did not, as we understand it, leave the appraisers 'at liberty at their discretion to disregard the evidence altogether, and to make their appraisement without regard to the evidence,' that their duty was to view the lands, hear the evidence, and fix the values.
Complaint is made, in another exception, of instructions given and refused by the court in instructing the commission. We shall briefly consider this objection. The instruction given was as follows: 'The commissioners are instructed that they shall receive no evidence tending to prove the prices actually paid on sales of property similar to that included in said park, and so situated as to adjoin it or to be within its immediate vicinity, when such sales have taken place since the passage of the act of congress of the 27th of September, 1890, authorizing said park; but any recent bona fide sales, made before the passage of said act, of lots similarly situated and adapted to similar uses, or recent bona fide contracts made before the passage of said act, with landowners, for other lands in the vicinity similarly situated, may be considered by the commissioners, looking at all the circumstances of these sales or contracts in the determination of the ultimate question of value.'
A further instruction was given in the following terms: 'The commissioners are further instructed that they shall be governed in their inquiry in making their valuations by the following considerations: What are the lands within the park limits now worth in cash, or in terms equivalent to cash, in the market, if a market now exists for such lands? What would any one needing lands for residence, agriculture, or any other purpose pay for them in cash? They are not at liberty to place a value upon these lands upon the basis of what one might be willing to buy them on time for purely speculative purposes; nor can they consider the value given them by the establishing the park; and they are to make their valuation without consideration of the fact that a specific amount of money is appropriated by the act of congress of 27th September, 1890.'
The instructions asked for by the plaintiffs in error were as follows: 'The commissioners shall estimate each parcel of land at its market value, and are instructed that the market value of the land includes its value for any use to which it may be put, and all the uses to which it is adapted, and not merely the condition in which it is at the present time, and the use to which it is now applied by the owner; * * * that if, by reason of its location, its surroundings, its natural advantages, its artificial improvement, or its intrinsic character, it is peculiarly adapted to some particular use,—e. g. to the use of a public park,—all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation.'
The theory of appraisement asked for by the plaintiffs in error differed from the one adopted by the court chiefly in two particulars—First, it treats the case as if it were one before an ordinary jury, whose action is determined by the evidence adduced; and, second, that the evidence might have reference to and include any supposed or speculative value given to the property taken by reason of the act of congress creating the park project. Whereas the court regarded the functions of the appraisers as including their own judgment and inspection of the lands taken, as well as a consideration of the evidence adduced by the parties.
We approve of the instructions given by the court in both of these particulars.
The scope of action of the board of commissioners was plainly, by the terms of the act and the nature of the inquiry, not restricted to a mere consideration of the evidence and allegations of the parties, but included the exercise of those powers of judgment and observation which led to their selection as fit persons for such a position.
While the board should be allowed a wide field in which to extend their investigation, yet it has never been held that they can go outside of the immediate duty before them, viz. to appraise the tracts of land proposed to be taken, by receiving evidence of conjectural or speculative values, based upon the anticipated effect of the proceedings under which the condemnation is had. Kerr v. Commissioners, 117 U. S. 380, 6 Sup. Ct. Rep. 801.
In connection with this part of the subject, we may appropriately consider the objection made to the action of the court below in declining to review and pass upon the evidence that had been produced before the commissioners.
If, as we have said, the court below was right in refusing to restrict the commissioners to a mere consideration of the evidence adduced, then it would seem to follow that the court could not be legitimately asked, in the absence of any exceptions based upon charges of fraud, corruption, or plain mistake on the part of the appraisers, to go into a consideration of the evidence. The court cannot bring into review before it the various sources and grounds of judgment upon which the appraisers have proceeded. The attempt to do so would transfer the function of finding the values of the lands from the appraisers to the court. Such a course would have presented a much more serious allegations of error than we find in the objection as made.
The rule on this subject is so well settled that we shall content ourselves with repeating an apt quotation from Mills on Eminent Domain, (§ 246,) made in the opinion of the court below: 'An appellate court will not interfere with the report of commissioners to correct the amount of damages except in cases of gross error, showing prejudice or corruption. The commissioners hear the evidence, and frequently make their principal evidence out of a view of the premises, and this evidence cannot be carried up so as to correct the report as being against the weight of evidence. Hence, for an error in the judgment of commissioners in arriving at the amount of damages there can be no correction, especially where the evidence is conflicting. Commissioners are not bound by the opinions of experts or by the apparent weight of evidence, but may give their own conclusions.'
A number of exceptions were filed to the action and conduct of the commissioners, but we think that they raised questions covered by the observations already made, and were properly disposed of by the court below.
Whether the plaintiffs in error were entitled to be allowed, in the assessment of damages, for the value of prospective gold mines in tract 39, designated on the map of the park, was a question mooted at the trial, and the action of the court in striking out the testimony offered to show such value, and in holding that, if there are any deposits of gold in this ground, they are the property of the United States, is complained of in the 7th, 8th, and 9th assignments of errors. The history of the tract in question was gone into at great length, and various patents of the province and state of Maryland were put in evidence. The court below held that, as by the grant of Charles I. to Lord Baltimore, 'all veins, mines, and quarries, as well opened as hidden, already found, or that shall be found, within the regions, islands, or limits aforesaid, of gold, silver, gems, and precious stones,' passed to the grantee, he yielding unto the king, his heirs and successors, 'the one-fifth part of all gold and silver ore which shall happen, from time to time, to be found;' and as the confiscation of the proprietary's title in 1780 vested the same in the state of Maryland; and as also the royalty of one fifth part of the gold and silver reserved to the king had also become, by the Revolution, vested in the state,—consequently the United States succeeded to the state's title by the act of cession of 1791.
The discussion by the court below was so elaborate and careful that no useful purpose would be served by entering minutely into the subject in this opinion. It is sufficient to say that our examination of the evidence contained in the record fails to disclose any error in the ruling of the court below respecting the ownership of a supposed gold mine in tract 39, and we adopt its opinion1 as presenting a full and satisfactory treatment of the question.
The twelfth and thirteenth assignments allege error in the court's action in confirming the report of the commissioners of appraisement as to a portion of the land embraced in the map of the proposed park, leaving other portions of that land unacted upon. We understand this objection to refer to the course of the park commissioners in securing the final action of the president upon a portion only of the lands described in the map as originally filed; and the contention is that the map was a finality, so that, if it turned out that the sum prescribed by the act of congress would not suffice to pay for all the tracts mentioned in the map, or if, for any other reason, the commissioners should exclude from their final selection any tract originally included in the map, the whole proceeding would be vitiated, and the purpose of the act defeated. We are unable to see the force of this view. The function of the map was not to finally commit the commissioners to taking all the parts included in it, but was to facilitate their proceedings in dealing with the owners. Congress could not have meant that the validity of the whole scheme should depend upon the accuracy with which the commission should define in advance the several tracts with whose owners negotiations were to be had. It seems to us that it was a sufficient and reasonable compliance with the law if the map, as finally acted upon by the president, showed the location, quantity and character of the parcels of land to be taken, with the names of their owners.
The fifteenth and sixteenth assignments, which complain of the course of the court in adopting and acting upon the decision of the president of the United States, approving the appraised values of part only of the land selected for the Rock Creek park, present the same contention in another form, viz. that the court and commissioners were concluded by the enumeration of tracts contained in the map when first prepared, and call for no further remarks.
The fourteenth assignment charges the court with error in refusing to allow interest on the amounts assessed as the values for lands selected for the Rock Creek park. The argument shows that the interest claimed was for the time that elapsed between the initiation of the proceedings and the payment of the money into court. The vice of this contention is in the assumption that the lands were actually condemned and withdrawn from the possession of their owners by the mere filing of the map. Interest accrues either by agreement of the debtor to allow it for the use of money, or in the nature of damages, by reason of the failure of the debtor to pay the principal when due. Of course, neither ground for such a demand can be found in the present case. No agreement to pay the interest demanded is pointed to, and no failure to pay the amount assessed took place. That amount was not fixed and ascertained till the confirmation of the report. Then some of those entitled to the assessments accepted their money; the plaintiffs in error declined to accept, and the amounts assessed in their favor were paid into court, which must be deemed equivalent to payment.
It is true that, by the institution of proceedings to condemn, the possession and enjoyment by the owner are to some extent interfered with. He can put no permanent improvements on the land, nor sell it, except subject to the condemnation proceedings. But the owner was in receipt of the rents, issues, and profits during the time occupied in fixing the amount to which he was entitled, and the inconveniences to which he was subjected by the delay are presumed to be considered and allowed for in fixing the amount of the compensation. Such is the rule laid down in cases of the highest authority. Reed v. Railroad Co., 105 Mass. 303; Kidder v. Oxford, 116 Mass. 165; Hamersley v Mayor, 56 N. Y. 533; Norris v. Philadelphia, 70 Pa. St. 332; Chicago v. Palmer, 93 Ill. 125; Phillips v. Commissioners, 119 Ill. 626, 10 N. E. Rep. 230.
These various contentions and objections did not escape the attention of the court below, but were disposed of, as they arose in the proceedings, in opinions of great research and ability, which appear in the record. We have briefly reviewed them here, not to add to what was so well expressed in those opinions, but to show that the questions so zealously and ably pressed upon us have not been disregarded.
Our conclusion is that we find, in the legislation creating the park and in the proceedings under it, no infringement of the constitutional or legal rights of the plaintiffs in error, and the judgment of the court below is accordingly affirmed.
Opinions Delivered in the Supreme Court of the District.1
In the concluding paragraph of the third section, authority is given to this court for the appointment of three commissioners of appraisement, to ascertain and assess the value of the lands, and return the appraisement to the court. When this duty has been performed by the commissioners of appraisement the 'quasi judicial proceeding' or 'trial' is at an end; and nothing more remains to be done by those commissioners with reference to that particular finding. Up to that point the president has nothing whatever to do with the proceeding, and he has neither the right nor the opportunity to interfere in any degree with the action of the commissioners in making their valuation. It is only after this quasi judicial act has been accomplished by the assessors that the president's function comes into activity. That duty is thus defined in the law: 'And when the values of such lands are thus ascertained, and the president of the United States shall decide the same to be reasonable, said value or values shall be paid to the owner.' Is this duty thus devolved upon the president, in the sense of the constitution, judicial? We have seen it does not derive such quality from any connection with the deliberations of the jury, since with those he has absolutely no more to do than the treasurer who has to pay the amount of their valuation. What he is thus empowered by the statute to perform is precisely what every corporation instituting condemnation proceedings has a right to do, irrespective of statute, after the jury has returned the award, if it shall decide the valuation is not reasonable; namely, to decline to take the property at all. This is perfectly well-settled law, and it scarcely needs the citation of authorities. Railroad Co. v. Nesbit, 16 How. 396; Steuart v. Mayor of Baltimore, 7 Md. 516; Graff v. Mayor of Baltimore, 10 Md. 552. The condemnation, until the acceptance of the award and payment of the money, is merely tentative; and the right of obandonment is subject only to the duty of reparation to the property owner for any damage occasioned him by the institution of the proceedings.
'This undoubted right would not be at all impaired if the existence of its right on the part of a corporation to refuse to take the particular property should happen to be declared in the act authorizing the condemnation. The acknowledgment in the act of a plain right could not destroy it. The same right of abandonment resides in the United States in the present case; and that right, also, cannot be affected by the provision in the act authorizing the United States to exercise it by declining to take the property unless the president shall decide that the valuation is reasonable. Where the United States is the promoter of the condemnation, it must act by an agent in deciding whether to accept the award; and congress, doubtless, thought it wisest to devolve this duty upon this high official, whose position, in itself, would seem to furnish a guaranty of perfect impartiality and of independence in the discharge of the duty assigned. The legality and propriety of such a provision in the law are well explained by the supreme court in the case of Garrison v. City of New York, 21 Wall. 204, where an award against the city for property taken for public use had been set aside by the court under the authority of a special statute authorizing a rescission of a former order of approval, and a re-examination of the award. Mr. Justice Field there said: 'The proceeding to ascertain the benefits or losses which will accrue to the owner of property when taken for public use, and thus the compensation to be made to him, is in the nature of an inquest on the part of the state, and is necessarily under her control. It is her duty to see that the estimates made are just, not merely to the individual whose property is taken, but to the public which is to pay for it. And she can, to that end, vacate or au thorize the vacation of any inquest taken by her direction to ascertain particular facts for her guidance, where this proceeding has been irregularly or fraudulently conducted, or in which error has intervened, and order a new inquest: provided, such methods of procedure be observed as will secure a fair hearing from parties interested in the property.' 'Nor do we perceive how this power of the state can be affected by the fact that she makes the finding of the commissioners upon the inquest subject to the approval of one of her courts. That is but one of the modes which she may adopt to prevent error and imposition in the proceedings.' 'The president is given by the act no power to take the property against the verdict of the assessors. He is only vested with the authority either to acquiesce in their judgment, or to decline to accept the property. The latter course, certainly, should not be disapproved of by such of the proprietors as really object to the taking of their land for the park. Such authority has been constantly given to the president by congress, without any suspicion that it was in such wise judicial that the executive could not constitutionally execute it. The acts of Maryland and Virginia, and of congress, about the close of the last century, committed to the president many duties connected with the location and acquisition of the District of Columbia, and the building regulations of the new city, which were much more obnoxious to such a charge, but they were performed without criticism by the courts. After establishing the boundaries of the District, the president changed them by proclamation so as to embrace territory below the mouth of the eastern branch. The plans for laying out the lands were declared to be such 'as the president should approve;' the public appropriations for parks were designated by him; and most of the building regulations in force here to-day were promulgated by Gen. Washington. Repeatedly provisions of law in statutes have been suspended because of discretionary powers given by acts of congress to the president to suspend their operation, if he should think the public interest required such action. Such were the cases under the Mexican and American joint commission. By subsequent statute it was declared that if the president should be of opinion that the honor of the United States, the principles of public law, or considerations of justice and equity, required that the awards made by that joint commission in the Cases of Well and La Abra Co. should be reopened, he was authorized to withhold payment of those awards. His course in concluding to do so was approved by the supreme court in Frelinghuysen v. Key, 110 U. S. 63, 3 Sup. Ct. Rep. 462, notwithstanding the contention that it was in inexcusable contempt of international awards; and it was further declared by the court that the president would have had the right to act as he did in the absence of a statute. The question came up again in U. S. v. Blaine, 11 Sup. Ct. Rep. 607, (not yet reported,) where the same doctrine was announced. In U. S. v. Chandler, 2 Mackey, 527, this court justified the secretary, under the orders of the president, in refusing to expend $200,000 to purchase land at Chiriqui for a naval station, under an act of congress authorizing him to establish stations and depots for coal at the Isthmus of Panama. Under the recent tariff and copyright acts, discretionary powers were committed to the president which might equally be called judicial, in that their performance involved the exercise of judgment and grave discretion. The presidents have approved and disapproved, as they saw fit, from the beginning of the government, the sentences of courts-martial, thus directly exercising what would have been properly called judicial power, if exercised by a reviewing court. Since the argument of this case the president has, by proclamation, declared that the United States has accepted the property in this city condemned for a city post office under a provision of the act of June, 1890, similar in terms to the language of the act before us. A similar requirement appears in the act of August 30, 1890, authorizing the acquisnion of land for the use of the government printing office; and the provisions of that act are made applicable to all future proceedings for taking property for public use in this District.
'4. The constitutionality of the law is assailed, finally, upon the ground that the amount of compensation to be paid for the land needed for the park is therein limited to $1,200,000, the sum appropriated by the act. It is argued that this provision is an admonition, if not a command, given in advance to the appraisers, that it would be unlawful for them to assess the aggregate cost at a larger amount than that named in the statute, and that they will not be considered as having found a just compensation if it exceods that sum. The words of the act afford an answer to these positions. This court is authorized and required to ascertain and assess the value of the land 'by appointing three competent and disinterested commissioners to appraise the value or values thereof, and to return the appraisement to the court.' The duty required of the appraisers is to appraise the value of the land, and to return to the court an appraisement not differing from their belief of its value, but in accordance with that belief. If they believe the aggregate value exceeds the amount named in the act, how can they escape the obligation to say so? If the law limited the expense to $10,000,000, would the appraisers be justified in valuing the land up to the entire amount merely because that limit was named in the law? Or if the sum named was $10,000, could it be supposed they would conform their valuation to what they plainly saw was an inadequate sum?
'We do not agree to the suggestion of defendant's counsel that the entire appraisement and award must be a unit. On the contrary, the adjudication of the value of each property must be separate. Whether the amount of the separate appraisement of the reasonable values of the several properties may exceed or may fall short of the sum appropriated, the appraisers must equally return what they believe is their just value, as competent and disinterested commissioners are bound to do. The idea suggested, that the $1,200,000 will be inserted in the precept issued to them as the limit of their finding, is altogether imaginary. The citation from Cooley (page 563) adduced to show that the legislature cannot fix the amount of the valuation in advance, has no application to a case like the present. In the Bridge Co. v. Warren, 11 Pet. 571, relied on by Cooley for the statement, Justice McLean declared that the provision in the charter of the new bridge company requiring it to pay a definite sum per annum to the old company as compensation for the injury to its property was an inadmissible mode of attaining the end designed, because, as expressed by him, 'by this provision it appears the legislature has undertaken to do what a jury of the county only could constitutionally do,—assess the amount of compensation to which the complainants are entitled.' The same reason is given for the use of a similar expression in Pennsylvania R. Co. v. Baltimore & O. R. Co., 60 Md. 269. There the legislature authorized any railroad to use five miles or less of the track of any other railroad, upon making compensation for its use at a rate per mile fixed in the statute itself. It was in reference to this exaction the court said: 'The legislature, in exercising the right of eminent domain, cannot, in the law itself, fix the compensation to be paid. Such compensation, in case of disagreement between the parties, must, in this state, be awarded by a jury.' But in the case at bar the statute appoints a tribunal of three commissioners, the acknowledged legal equivalent of a jury in condemnation proceedings, and by that commission alone is the just compensation to be appraised.
'That the naming of a fixed sum in the act can operate as a limitation to prevent congress from increasing it, if it should think proper, is of course incorrect, and not justified by the course of congress in other cases. By the act of 1886, c. 50, (24 St. p. 13,) a large sum was appropriated to acquire land for the congressional library building. The awards for the land found by the jury overran that sum, and a subsequent appropriation was made to complete the payment. By the act of 1888, c. 1069, a designated sum was appropriated for the purchase of land for the use of the bureau of engraving and printing. It was represented to congress that the award would probably exceed that amount, and at the last session, by chapter 542, a further sum was appropriated for the purpose. We, of course, have no thought of intimating any likelihood that such excess of valuation may occur, or that the appraisers can lose sight of the double responsibility that must weigh upon them with equal weight,—the duty to protect the people among whom they live from excessive exactions,—and the equal duty to allow to the owners a just value for their lands. We have only spoken thus to show that the act has not left the landowners in the helpless predicament stated. That the government is bound to make just compensation for whatever it shall take from the individual is undoubted; and in the words of the supreme court in Great Falls Manuf'g Co. v. Attorney General, 124 U. S. 596, 8 Sup. Ct. Rep. 631: 'It is to be assumed that the United States is incapable of bad faith, and that congress will promptly make the necessary appropriations whenever the amount of compensation has been ascertained in the mode prescribed.' We believe the citizen may well confide in the ultimate justice of his government,—the most generous, as it is the happiest and the most powerful, on the earth.
'5. The further objection was presented by the answer, though not argued at length, that the appropriation of these lands for the purposes of a public park was not a 'public use,' in the sense of the constitution. It must be conceded that in a case like the present the legislature is the competent judge to decide this point. Upon all the authorities, it is also well settled that the condemnation of land for the purpose of a park is within the principle. If no other ground existed for its exercise, we think the duty of the government to obtain control of the entire course of Rock creek, within the boundaries of the District, to prevent its waters from being polluted by the offal of shaughterhouses and of disgusting factories, bringing their abominations into the midst of the city to poison and infect the air, would afford sufficient justification for this attempt to save the community from such dangers. The objections being all overruled, the court will proceed to act, as requested by the petition.'
The following is the opinion of the supreme court of the District overruling the exceptions to the commissioners' report:
(February 23, 1892.)
'Mr. Justice COX. We have had under consideration the exceptions that have been filed to the confirming of the report of the commissioners appointed to appraise the land selected for Rock Creek park. The act under which these proceedings were instituted is dated September 27, 1890. It has defects in it which may embarrass its execution, and give rise to questions in the future, but we will settle the exceptions, as we are only called upon to do that now. It seems to us that our duty, as marked out in the act, is sufficiently plain and simple. The first section of the act provides that a tract of land, the limits of which are described in general terms, shall be secured as hereinafter set out, and be perpetually dedicated and set apart as a public park, pleasure ground, etc. It has a proviso as to the quantity of land, and the cost to be incurred. There are four steps to be taken in the process of securing the land, which are ordained by the body of the statute. The first one is the selection of the land by certain commissioners. The commission is composed of the chief engineer of the United States army, the engineer commissioner of the District of Columbia, and three citizens to be appointed by the president. The next step is described in the third section: 'That said commission shall cause to be made an accurate map of said Rock Creek park, showing the location, quantity, and character of each parcel of private property to be taken for said purpose, with the names of the respective owners described thereon, which map shall be filed and recorded among the public records of the District of Columbia, and from and after the date of the filing of said map the several tracts or parcels of land embraced in said Rock Creek park shall be held to be condemned for public uses, and the title thereof vested in the United States, subject to the payment of just compensation, to be determined as hereinafter provided.' Of course this condemnation—this transfer of title—is conditional; it is conditioned upon the payment of just compensation. The next step consists in the valuation or the ascertaining of the value of the land to be selected. That is to be done in one of two ways. If it can be done by agreement with the owners, that is the process. If it cannot, then the court is directed to assess and ascertain the value in the manner that I will speak of presently. The last step is the payment of money, and it is provided that, 'when the said value or values shall be paid to the owner or owners, the United States shall be deemed to have a valid title to said land.' The act had already provided that upon the filing of the map the title should be held vested in the United States, but, as I said, that was a conditional transfer of title. Upon the payment of value, then the United States was to have a valid title to the land; in other words, then, for the first time, the condemnation is absolute and complete, and the title is transferred absolutely to the United States. As to the land about which the commission failed to agree with the owners, we are now at the third step in the process of its acquisition by the United States; and here it becomes important to ascertain exactly what the duty of the court in the premises is declared to be. The land which is embraced in the map recorded is the land which is condemned conditionally. Then it is provided that if the said commission shall be unable, by agreement with the respective owners, to purchase the land so selected and condemned within thirty days, it shall be the duty of said commission to make application to the supreme court of the District, on petition for an appraisement of the values of such land as it has been unable to purchase,—that is, such land as has been conditionally taken, which is the land embraced in this recorded plat. The petition shall contain a particular description, etc., and the said court is authorized and required, upon said application, and without delay, to notify the owners and occupants, if known by personal service, and to ascertain and assess the value of the land so selected and condemned. Now, it will be observed that the court has no discretion in the matter at all. It is by the act directed to ascertain and assess the value of the land. The means by which the court is to do it is also provided for. The court is to ascertain and assess the value of the land so selected and condemned by appointing pointing three competent and disinterested commissioners to appraise the value thereof. As I said, the court has no discretion. It is the duty of the court to ascertain the value of the land embraced in the recorded map which is selected and condemned. If the court should decline to discharge that duty, the commission would be entitled to a mandamus to compel it. The court has to appoint three competent and disinterested commissioners to appraise the value or values thereof. Now, it is conceded that, in the exercise of the right of eminent domain by the United States, the owner of the property is not entitled as a constitutional right to a trial by jury, because the ascertaining the value by inquest was due process of law before the constitution was adopted, and it has been recognized as such since. It cannot be said that there is any universal or well-established
system of rules governing the proceedings of condemnation by inquest; but in this country it is subject to some rules. It is a universal rule that this proceeding shall in some form or other be subject to judicial supervision, so that the constitutional rights of the citizens shall not be infringed; that is, he shall have a hearing, and his property shall be fairly estimated, and not taken from him without adequate compensation being paid to him. The practice is different in different states. In some states, as, for example, Wisconsin, Montana, and, perhaps, elsewhere, after appraisers have acted, the owner has the right to appeal to the court from the appraisement made, and have the question of value regularly tried by the court and a common-law jury; and such trials are governed by the ordinary rules that are applied to other trials by jury. In some states, as in Missouri, there is a general power given to the courts to review the findings by appraisers; but everywhere it is recognized that a certain control is to be exercised over the proceedings by appraisement by the court. If, for example, it appears that the jury, in making up their estimates, have disregarded the provisions of a statute, and taken into consideration things which the statute forbade them to consider, or vice versa, the court would set aside the finding. Again, if it appears that in appraising any particular parcel the appraisers or the jury, as the case might be, have made a plain mistake of fact, or a plain misapplication of the fundamental principles of law, or a mistake in calculation, or, finally, if they have been governed by prejudice or partiality, the court would set it aside. For instance, in one case, where a railroad company was the party seeking condemnation, it appeared that the jury of inquest had valued a fraction of a tract of land at more than the whole tract was clearly worth; it was set aside as evidence of partiality and prejudice.
'Now, the court is bound to complete this assessment. If it sets aside one appraise ment, it must go on with another, until an unobjectionable one is made, and then the assessment is complete. There are two acts bearing upon this subject, viz. the present act, and one passed in August, 1890, relating to the printing office. If the present act alone is to govern, then the rule would be that the appraisers are to appraise the property, and return the appraisement to the court, and that ends the process of assessment. The appraisement returned to the court would be a conclusive finding of value; but before this act was passed there was enacted the sundry civil appropriation act of August, 1890, which provided, among other things, for the purchase of additional land for the printing office; and that provides that the commissioners appointed to appraise, after being duly sworn for the proper performance of their duties, are to examine the premises, and also such persons in interest as might appear before them, and return their appraisement of value, and, when such report shall be confirmed by the court, then the president, if he shall deem the public interest require, shall cause payment to be made, etc. It further enancts that hereafter, in all cases of taking property in the District for public uses, whether herein or heretofore or hereafter authorized, the foregoing provisions, as respects the application of the proper officer to the supreme court of the District of Columbia, and the proceedings therein, shall be as in the foregoing provisions declared.
'It is claimed that the act of August, 1890, should be read into this act. The only effect of that is to make the confirmation of the report of the appraisers necessary; also to complete the official and judical appraisement. It makes only this difference. If the present act alone governed, then the value of the property has been determined by the report of the appraisers, and it is conclusive as to value; but, if the act of August, 1890, is to apply, then, when the appraisement is returned, and no objection is made, or it appears that they have done their duty, it then becomes the duty of the court to confirm it. Now, then, the court has to complete this assessment by confirming it. It must confirm it as a matter of course, if the appraisers have discharged their duty, and if there is no legal ground for setting it aside. I have stated, in a general way. examples of cases in which a court will set aside an appraisement made by a board of appraisers or a jury of inquest, as the case might be. Subject to those general observations, I think the rule may be stated that the court will not review the findings of a board of appraisers simply upon evidence as to value. There is this important difference between a trial jury and a board of appraisers selected for that purpose: The jury is selected by being drawn from a box among a large number of names, and is not selected with reference to any special fitness to determine the particular case submitted to them. Then they are sworn to find a verdict according to the evidence,—not from their knowledge, but according to the evidence. The present law provides for a board of competent appraisers. They are selected with special reference to their fitness to judge and determine the values, and they are instructed to appraise,—not to find a fact according to the evidence, but to exercise their own judgment. They are directed to view the premises, and the duty imposed is more than what is generally asked of a jury.
'The observations of Judge Ira Harris, which are reported in Railroad Co. v. Lee, 13 Barb. p. 169, on this question, are very pertinent. That was an appeal from an appraisement and report of commissioners. He says: 'I think it is quite obvious that the review is not to be had upon the same principles by which the court is guarded in reviewing the proceedings of a judicial tribunal. Any technical departure from established rules in the admission or rejection of evidence cannot be allowed to affect the appraisement unless it appears that such error has injuriously affected the party appealing. The commissioners are not, like other tribunals, to be governed exclusively by evidence. They are required to view the premises, as well as to hear the proof and allegations of the parties. The one duty is not less imperative or important than the other. The commissioners are selected with a cautious regard for their fitness to judge, after qualifying themselves, in the manner prescribed, of the compensation which ought justly to be made for the land to be taken. If the court, upon appeal, are satisfied that they have not erred in the principles upon which they have made their appraisal, no other error will be sufficient to send the report back for review.' The judge then refers to the testimony of certain witnesses, and their opinion of the value of the land in dispute. He then says: 'These opinions constitute the chief part of the testimony taken. Such testimony, although admissible, is not entitled to great weight. Indeed, it is a departure from the general rule of evidence to receive it at all. 'The whole history of this kind of evidence,' says a distinguished judge, 'shows that it is separated from incompetency by a very thin partition.' In re Pearl Street, 19 Wend, 651, per Cowen, J. The opinions of witnesses, at the best, are to be received as persuasive evidence, and never controlling. The verdict of a jury is determined by the testimony submitted to their consideration. It is therefore the subject of review. It may be presented to the consideration of the court upon paper; but it is not so in relation to the proceedings of these commissioners of appraisal. The very first thing they are required to do is to view the premises. Thus their own senses are made to testify. The information thus acquired it is impossible to bring before a court of review. The commissioners, too, are selected with reference to their general knowledge qualifying them to judge completely upon the matters submitted to them. Unlike a jury, they are restricted to no particular species of evidence, or any particular sources of information. They may collect information in all the ways which a prudent man usually takes to satisfy his own mind concerning matters of a like kind where his own interests are involved in the inquiry. They may seek light from other minds, that they may be the better able to arrive at just conclusions; but, at the last, they must be governed by their own judgment. That judgment is not to be controlled or outweighed by the opinions of any number of witnesses. The commissioners have no right to take such
opinions, nor, indeed, any other evidence, as to the basis of their appraisal, with out exercising their own judgment. They are to hear all the proofs and allegations of the parties, as well as to view the premises, as a means of enlightening their judgment; and, having done all, they are then to determine, in the free and uncontrolled exercise of the judgment, thus enlightened and thus informed, what award will best dispense equal justice to all the parties. When original jurisdiction is to be exercised in this manner, it is impossible, from the very nature of the case, that there should be anything like regular judicial review.' The same general principle is stated in Mills on Eminent Domain, (section 246:) 'An appellate court will not interfere with the report of commissioners to correct the amount of damages except in cases of gross error, showing prejudice or corruption. The commissioners cannot find a greater amount of damages than is claimed by the owner. The commissioners hear the evidence, and frequently make their principal evidence out of a view of the premises, and this evidence cannot be carried up so as to correct the report as being against the weight of evidence. Hence, for an error in the judgment of the commissioners in arriving at the amount of damages there can be no correction, especially where the evidence is conflicting. The commissioners are not bound by the opinions of experts or by the apparent weight of evidence, but may give their own conclusions.'
'Now, as I have stated, the duty of the court is to see that a valid appraisement is made. An appraisement has been made and returned, and, unless some affirmative ground for setting it aside appears, it must be confirmed. The owners have, through counsel, appeared, and filed a large number of exceptions, some of which are urged, and some not. One or two of the exceptions have raised constitutional questions that have heretofore been passed upon by the court. It appears that in all the cases 13 or 15 different exceptions were filed, but a number of them have not been insisted upon at the argument. I do not think the latter require any particular notice. Two or three of them are mere variations of the same general propositions; and when we sift them down, and get at the essence, they are really only three or four in number. In some of them the question made is embraced in two or more propositions. The first one that I will notice, based on alleged misconduct on the part of the commissioners in including in the park an amount of land the value of which, as shown by the appraisers in their report, is largely in excess of the appropriation by congress. That is not an exception based upon any misconduct of the commissioners to appraise, but it is based upon the alleged excess of authority on the part of the commissioners of selection. This objection amounts simply to this: That this court has no right to appraise the land because after the appraisement is made, and, by and through it, it is ascertained that the land is more than the commission to select had a right to take. In other words, the court has no right to discharge its duty because, after the duty is discharged, certain facts are discovered which is really a contradiction. The question naturally arises, how is it to be known that those lands are worth more than the law has provided for until the appraisement is completed? The restriction as to cost is not a restriction upon the duty of the court to appraise the land, but it is a restriction upon the provision for securing the land, which is only consummated by the payment of the money. The law is that the land shall be secured, provided that the total cost shall not exceed the money in the act appropriated. But it cannot be discovered whether or not the value is in excess of the appropriation until the court has discharged its duty by officially assessing the land. We think, therefore, that the objection in question does not go to the appraisement.
'The next exception is: The commissioners have disregarded the evidence. That is expressed in three propositions,—Fourth, because the land of the respondent is of the actual value in excess of that found by the commissioners; fifth, because the report as to the value is contrary to the evidence; sixth, because the commissioners, in appraising the value of the land, disregarded the evidence, and found the value, regardless of the testimony, at less than the actual value. In other words, the objection is that the finding of the appraisers is contrary to the evidence,—not contrary to the weight of the evidence, but contrary to the evidence,—and that raises the very question which I have in part discussed, viz. whether the court can review the finding of the appraisers upon the evidence as to value. I have already stated that, as a general rule, we are satisfied that the court has no right to review an appraisement and set it aside because of error of judgment on the part of the appraisers as to value. But another difficulty arises here. Suppose the court has the right to do that; when is a verdict or finding said to be against the evidence? Suppose that four or five witnesses testify to an actual occurrence of which they are eyewitnesses; they are not contradicted; there is no reason for disbelieving them; and yet the verdict finds the very opposite of the fact to which they testify. In that case it could be said that the verdict was against the evidence. But that was not the character of the evidence offered in this case, which consists for the most part merely of opinions by so-called 'experts.' Now, nothing can be made plainer than that even an ordinary trial jury, and, still more, selected appraisers, have a right to discount such testimony as this, and to give it just such weight as they think it deserves. The supreme court have expressed themselves upon this subject in the case of Railway Co. v. Warren, 137 U. S. 348, 11 Sup. Ct. Rep. 96: 'In respect to such value the opinions of witnesses familiar with the territory and its surroundings are competent. At best, evidence of value is largely a matter of opinion, especially as to real estate. True, in large cities, where articles of personal property are subject to frequent sales, and where market quotations are daily published, the value of such personal property can ordinarily be determined with accuracy; but even there, where real estate in lots is frequently sold, where prices are generally known, where the possibility of rental and the circumstances affecting values are readily ascertainable, common experience discloses that witnesses, the most competent, often widely differ as to the value of any particular lot; and there is no fixed or certain standard by which the real value can be ascertained. The jury is compelled to reach its conclusions by comparison of various estimates. Much more is this true when the effort is to ascertain the value of real estate in the country, where sales are few, and where the elements which enter into and determine the value are so varied in character.'
'I can conceive that, even in a case of this sort, a finding may be against the evidence. Suppose that the appraisement here largely exceeded the highest claim of the owners, or, on the other hand, had fallen far below the admission of value by the government, in such case it would be against the evidence. But here the appraiser's figures fall between the two estimates,—the witnesses' on behalf of the government on the one hand, and those on behalf of the owners on the other. The owners say that it is contrary to the evidence. They mean, of course, that it is contrary to their evidence, but it is not contrary to the whole evidence. It is supported by evidence on the part of the government in a certain sense; that is to say, the evidence on each side supports the finding as against the contention on the other side. The evidence before the appraisers was conflicting, and the result is simply an estimate based upon a comparison of the opposing opinions. It cannot be said that the result was contrary to the evidence.
'I will, for a moment, refer to an affidavit that was filed by Mr. Jones, one of the parties in interest, to the effect that in conversation with Mr. Seufferle, one of the commissioners, the latter said that they did not regard the evidence, but followed their own opinions. Now, we cannot go into a collateral inquiry about that. There has also been taken the affidavit of Mr. Seufferle, which contradicts Mr. Jones, and that is an end of this matter. But apart from that, we could only understand the affidavit, allowing for the misunderstandings of a casual conversation, as amounting to no more than evidence; that the commissioners did not feel bound by the evidence of other people, but had a right to exercise their own independent judgment. That is just what they had right to do; and, giving the affidavit the weight that we think it is entitled to, it does not prove any misconduct on the part of the commissioners, or that they did anything not strictly within their power and duty.
'Another ground of exception is misconduct on the part of counsel representing the government. This is found expressed in three or four different propositions, as follows: 'Because of the misconduct of the petitioner, the United States, in proceedings in this case prejudicial to said respondent, in this: that, under the constitution of the United States, the respondent is entitled to have a just compensation for the premises proposed to be taken, and to have the testimony of impartial and unprejudiced witnesses with reference to said value, and that the said petitioner disregarded the constitutional right of these respondents to have such impartial testimony, and procured and produced before said commission the testimony of witnesses who were not impartial, as the petitioner knew. The petitioner disregarded such constitutional right of this respondent, in this, to wit: (a) By the provisions of said act of congress the commission appointed to designate the lands to be embraced in said park were required to determine the value of the lands so designated. (b) The said commissioners embraced in said park nineteen hundred and eighty acres of land, the price to be paid by them for said land being limited by the act of congress to the sum of one million two hundred thousand dollars, including the expenses of condemnation. (c) The said commissioners, having designated the said nineteen hundred and eighty acres of land, then proceeded, as required by said act, to fix values, and did fix values thereon that were grossly inadequate, and which were refused by said respondents because of such gross inadequacy. (d) That, upon hearing before said commissioners to appraise the value of said lands, under the petition in this case, the said petitioner did not proceed to procure the testimony of witnesses to impartially testify touching the values of said lands, but, on the contrary, placed a list of prices so fixed by said commissioners as aforesaid in the hands of divers persons proposed to be used as witnesses to testify in respect of said values, for the purpose of affecting the judgment of said persons as to values, and to guide them in reaching the values to correspond with the values that had been thus fixed by said commissioners, and by the said commissioners furnished to them. (e) Because said petitioner, after the filing of said petition and the appointment of said commissioners to assess the values, proceeded to make purchases of divers tracts of land which had been embraced within the proposed limits of said park, and the prices at which said purchases had been made were communicated to the said proposed witnesses with the purpose and view hereinbefore averred, and, having thus communicated to the said proposed witnesses the said prices aforesaid, the said witnesses met and consulted together, and substantially agreed upon the prices that they would testify to, (and said proposed witnesses were afterwards called upon to testify,) and did testify to prices grossly inadequate, and substantially corresponding with the prices which had been fixed by said commissioners, and which they had substantially agreed upon between themselves, which testimony was received and considered by said commissioners.' In other words, it amounts to this: That the attorney representing the government had communicated with their witnesses; that the three witnesses who were called upon on the part of the government looked at the lands, went over them, compared notes, and reached a conclusion as to value before they were put upon the stand to testify. Now, this testimony was exactly of the same character as the other testimony. It was merely the opinion of these alleged experts. I do not know of any limit as to the right of an expert witness to qualify himself to testify by making notes, and comparing his views with others. After all, he simply gives his opinion. It seems to me that he has a right to enlighten his judgment by any means which conduce to the formation of a reliable opinion. Suppose that a motion were made to set aside a verdict of a trial jury; how would it sound to allege, as a ground for it, that the plaintiff's expert witnesses had put their heads together and compared notes before they went on the stand, and especially how, if that fact had been brought out on cross-examination by the adverse party, and had been fully discussed as going to the credibility of the witness? It would be a very novel idea. This is certainly not a sufficient objection to the finding of the appraisers.
'These are substantially all the grounds of objection which are set out in the exceptions. At the argument counsel went somewhat further, and maintained that to confirm this appraisement would be to enter a judgment against the United States for the entire amount of the appraisement, and in violation of the limitation as to amount stated in the act under which the proceedings were instituted. In any course of judicial decision with which we are familiar in this latitude it has never been suggested that an appraisement of land taken for a state or the United States or a municipality or a private corporation amounts to a judgment against the parties seeking to have it confirmed. On the contrary, it has been held that the parties seeking the confirmation have a right to abandon the ground which has been selected, as, for instance, by a railroad company, and seek another location. That right certainly existed in Maryland, from which state our jurisprudence is derived. In the state of New York there is a statute which gives the owner a right of an action immediately upon the condemnation; but even there it was held that the condemnation might be set aside by statute. The general rule on this subject is stated in Lewis on Eminent Domain, (section 656,) under the head of 'The Right to Abandon after the Proceedings are Complete:' 'The weight of authority, undoubtedly, is that, in the absence of statutory provisions on the question, the effect of the proceedings in condemnation is simply to fix the price at which the party condemning can take the property sought, and that, even after confirmation or judgment, the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded.' If there could be any doubt upon that point, it is removed by the provision of this statute that the condemnation shall not be complete until the president approves of the prices, and by the limitation as to cost. As to the fact of confirming this appraisement, acting as an absolute judgment against the United States, I will say that this court has no power, under any circumstances, to render a judgment against the United States.
'We have gone through, then, with all the exceptions, and do not find that they are sufficient to justify us in setting aside the re port of the appraisers, and we shall there fore confirm it.
'In regard to the claim of Mrs. Carpenter, represented by Mr. Robinson, there are two alternative appraisements. We do not now decide which one of the appraisements to adopt, and that will have to be settled by further evidence.'
On the motion to dismiss the petition filed by the commissioners April 19, 1892, praying for an order authorizing them to pay into court the assessed values of the various parcels of land, the opinion of the supreme court of the District was as follows:
(May 9, 1892.)
'Mr. Justice JAMES. It is conceded by the commissioners that this statute must be regarded as a finality, and that no step can be taken either by themselves or by the court or by the president, the validity or effect of which must depend upon further legislation. If it is not practicable and lawful to secure a park on Rock creek without doing some act which is not authorized by the statute, then the requisition of a park is not authorized at all. It is insisted, on the part of the owners of some of the parcels which the commissioners now propose to take, that this legal impossibility has now been ascertained, and that their authority and that of this court to proceed further in the premises has come to an end.
'We understand the argument to be substantially as follows: It was the intent of the legislature that the land shown on the recorded map was the thing to be taken. The authority to take applied, therefore, to that land, and to neither more nor less. But the taking of that land is subject to a condition that it shall be obtainable for $1,200,000. As it has been conclusively ascertained, in pursuance of the statute, that the only taking authorized at all is now impossible, there can be no taking.
'These propositions rest upon the theory that this statute shows, not a general intent that a park should be established, but only a particular intent that a certain designated tract of land should be taken for a park, provided it could be had for a certain price; and this construction of intent is based upon the contention that the recorded map was intended by the legislature to be, in effect, its own designation of the tract to be taken, so that the statute is mandatory to the effect that precisely the quantity of land shown on the recorded map must be taken as an entirety. This we understand to be a fair statement of the method by which the conclusion is reached that, if all the land exhibited on the recorded map cannot be had for the price limited by statute, then nothing further can be done in the matter of a park. It is observable that some of the provisions of this act are inartificially expressed, but, when all of them are considered together, as of course, they must be, the intent of the statute is unmistakable. We are of opinion that it expresses—First, an absolute intent that there shall be a park on Rock creek; second, that this park, thus absolutely provided for, shall not exceed a certain size, nor cost more than a certain sum. We are further of opinion that the subsequent provisions of this act, notably the provisions relating to the recorded map, were intended to be in furtherance of the intent that a park should actually be secured, though within restrictions as to size and cost, and were not placed there with the intent that they should upon any contingency operate to defeat the undertaking entirely. In other words, we are of opinion that the only fair and reasonable construction of this act is that it intends that a park not exceeding two thousand acres in area, and not costing more than the sum which congress appropriated for the accomplishment of that purpose, shall actually be secured, and intends, also, that the provisions of this statute shall operate as the means of accomplishing that end. We think the processes of interpretation and construction alike support this conclusion.
'The first section of the act provides 'that a tract of land lying on both sides of Rock creek, * * * of a width not less at any point than six hundred feet, nor more than twelve hundred feet, including the bed of the creek, of which not less than two hundred feet shall be on either side of said creek, south of Broad Branch road and Blagden Mill road, and of such greater width north of said roads as the commissioners designated in this act may select, shall be secured, as hereinafter set out, and be perpetually dedicated and set apart as a public park and pleasure ground for the benefit and enjoyment of the people of the United States, to be known by the name of 'Rock Creek Park:' provided, however, that the whole tract so to be selected and condemned under the provisions of this act shall not exceed two thousand acres, nor the total cost thereof exceed the amount of money herein appropriated.' The appropriation referred to is made in the following words of the sixth section: 'To pay the expenses of inquiry, survey, assessment, cost of lands taken, and all other necessary expenses incidental thereto, the sum of one million two hundred thousand dollars, or so much thereof as may be necessary, is hereby appropriated,' etc. It may be added that the title of this act is 'An act authorizing the establishing of a public park in the District of Columbia.' We suppose it would be impossible to express more distinctly an absolute intent that a park should be established. Unless the absoluteness of the authority given by the broad language of this first section is expressly limited, and is expressly or necessarily made to be wholly a contingent or conditional authority by some subsequent provision, it must be held to be the fixed and controlling intention of congress that somewhere within the limitations of area and cost a park may be secured by the commissioners.
'It is contended on the part of some of the owners that this authority to take land and to establish a park is reduced to a conditional authority by the operation of the third section, which relates to the map showing the parcels of land to be taken, and providing that on the filing of that map those parcels should be held 'condemned' to be taken. It is insisted that the designation which the commissioners were authorized to make must be regarded, when made, as if they had been originally designated in the act itself. This contention involves, we think, a confusion of principles. It is true that an act done by one to whom authority to do it has been delegated has the same validity as if done by the party who delegates the authority, and that, on this principle, a taking of private property for public use by one who is authorized by the legislature to select and take land is as lawful as if the legislature had taken it, and that, in this sense, the taking is to be regarded as done by the legislature; but the contention in this case is to the effect that, while discretion to elect between several courses was given by the legislature, we are to hold that when the discretion has been exercised, and the election has been made, the particular choice made was one which the agent was originally commanded to make. It is only on that theory that this statute can be supposed to say to the commissioners: 'It is our intent that you shall take only the following specified tract of lands, and you are authorized to take that tract only in case you can get it for a certain price.'
'We know of no principle on which an accomplished selection which the commissioners had uncontrolled discretion to make can by this sort of relation be constructively put into the statute as an original provision to the effect that they had no discretion, but had only authority to do a particular thing; that is to say, authority in this case to obtain a tract made up of all the parcels shown on this map, and to obtain neither more nor less. It is difficult to understand how the very exercise of discretionary power should work a limitation of the original authority. Another ground of objection is that the selection shown by the recorded map constitutes, at all events, a case of exhausted power; that the commissioners have defined and 'located' once for all a park site, and now have no further power of selection or alteration of that location. If this were a correct conclusion, we should have before us a specimen of legislation without parallel. The statute authorizes considerable expenditures out of the appropriation to be made before it can be ascertained that the whole of the lands shown on the map cannot be had for the money appropriated. Many months must inevitably be—as in fact, they have been—consumed in ascertaining the values of these parcels; and yet it is contended that, if it should appear by the appraisement, after all these expenditures out of the appropriation, especially after some of the lands had been purchased and paid for, that the commissioners had placed on the recorded map more lands than the appropriation would pay for, it was the intent of the legislature that thereupon the authority of the commissioners should end, and the whole undertaking should come to naught. Is this a reasonable construction of the statute? The second section provides for 'a commission to select the land for said park, of the quantity and within the limits aforesaid;' namely, within the limits of two thousand acres, and twelve hundred thousand dollars of cost. Is it to be supposed that this general power of selection was intended to be exhausted by one selection, if it should appear that the selection first made could not be wholly carried out by purchase? Authority to select the land for a park was given in order that there might be a park, and in order that the lands selected should be suitable for that purpose. It was given in order that an important end might be achieved. Would it be reasonable to hold that authority to reach this end was exhausted by one effort to reach it? No such rule of exhausted power is applied by the courts even to a first location of a railroad line if the second location does not amount to an attempt to construct a road that has not been authorized; but, if it had been actually so applied, we should hold that this theory of exhausted power was not applicable to this statute. Rules of construction are sometimes spoken of as if there were actual rules of f law by which the meaning and intent of statutes are to be ascertained, but there are no such restrictions upon construction. The intent of thi statute can be gathered from its own provisions, and from its special purposes; and we find nothing in these provisions or purposes which indicates that the authority of these commissioners is limited to a single exercise of discretion. It was from the beginning in contemplation of this act that they might find when their selections came to be appraised that they could not obtain all of the selected lands for the amount of the appropriation. We hold that it was therefore in contemplation of this act that in order that they might accomplish the general intent of the statute, which it was their business to subserve, they should have authority to amend their work by abandoning such parcels as they were not authorized by the appropriation to purchase. We think the selection which they now present to us, with the approval of the president, conforms strictly to the intention of the act.'
The following is the opinion delivered in the supreme court of the District on the motion to strike out the evidence relating to the existence of gold mines in certain of the tracts in question:
(November 17, 1891.) note
'Mr. Justice COX. We have had under consideration the motion made in this matter by the petitioners, and that motion is that the court strike out all the evidence introduced by the defendants Shoemaker and Truesdell realting to the existence of gold mines in tracts 39 and 42 on the map filed by said petitioners, on the ground that, if any gold mines exist therein, the title thereto is in the United States.
In order to solve this question, we are compelled to go somewhat into the history of titles in Maryland. All land titles in the District are derived primarily from Maryland. We all know that the history of the title to real estate in Maryland commenced with the charter to Caecilius Calvert, Lord Baltimore, by Charles I., in the eighth year of his reign. That charter defines the limits of the province of Maryland, and grants and confirms unto the said Caecilius Calvert, baron of Baltimore, his heirs and assigns, the lands and waters included within those limits, and goes on to say: 'And moreover all veins, mines, and quarries, as well opened as hidden, already found or that shall be found within the region, islands, or limits aforesaid of gold, silver, gems, and precious stones, and any other whatsoever, whether they be of stones or metals or of any other thing or matter whatsoever.' They were granted to him, his heirs and assigns, forever, 'to hold of us, our heirs and successors, kings of England, as of our castle of Windsor, in our county of Berks, in free and common socage, by fealty only for all services, and not in capite knight's service, yielding therefor unto us, our heirs and successors, two Indian arrows of those parts, to be delivered at the said castle of Windsor every year, on Tuesday in Easter week, and also the fifth part of all gold and silver ore, which shall happen from time to time to be found within the aforesaid limits.'
'The right to mines of gold and silver was considered one of the jura regalia under the common law of England. In this country we have no jura regalia. Whoever owns the land owns everything contained in it, including mines, unless they be expressly reserved, and the same law is applicable to a transfer by the federal government.
This matter of the ownership of mines was discussed in the case of Moore v. Smaw, 17 Cal. 199, where the court, in its opinion as delivered by the chief justice, says:
'In the great case of Reg. v. Earl of Northumberland, 1 Plow. 310, which was argued before the barons of the exchequer and all the justices of England, it was held, by their unanimous judgment, 'that by the law all mines of gold and silver within the realm, whether they be in the hands of the queen or of the subjects, belong to the queen, by prerogatives, with the liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore;' and also 'that a mine royal, either of base metal containing gold or silver, or of pure gold and silver only, may, by the grant of the king, be severed from the crown, and be granted to another, for it is not an incident inseparable to the crown, but may be severed from it by apt and precise words.' This case was decided in 1568, during the reign of Queen Elizabeth, and continues until this day an authoritative exposition of the doctrine of the common law. It is conclusive to the point that the right to the mines was not regarded by that law as an incident of sovereignty, but was regarded as a personal prerogative of the king, which could be alienated at his pleasure.'
The title to mines in Maryland was vested by the charter in the 'lord proprietary,' as he was called, subject only to a royalty of one fifth part of them in favor of the crown.
In an exposition by Kilty of 'original titles as derived from the proprietary government, and more recently from the state of Maryland,' called the 'Landholder's Assistant,' and which has been referred to by counsel on both sides in the argument as a work of authority, it appears that the proprietary formulated from time to time rules and regulations for the disposition of his land, called 'conditions of plantations, instructions, etc.' These 'conditions of plantations, instructions,' etc., became matter of record, and, so far as extant among the public records of the state in the year 1808, are printed in the work referred to, which was issued in that year, and were originally carried into effect by some one or other of his lordship's agents and chief officers in the province, such as his 'lieutenant general,' his 'chief governor,' his 'lieutenant governor,' and later by the governor and council, and others charged with the management of land affairs.
Three steps were necessary for transferring the title from the proprietary to the individual seeking the patent. The first was a warrant issued by the
proper officer, and which was the authority to the surveyor of the county to survey and lay off the particular quantity of land; the next step was the returning by the surveyor of his certificate of survey; and the third step was the issue of the patent. In the course of time another form of warrant came to be issued, called the 'warrant of resurvey.' Parties having several contiguous tracts by patent from the land office procured from it a warrant of resurvey, authorizing the surveyor to resurvey those tracts, the grounds assigned for which were the uncertainty of existing bounds, and the desire of the parties to connect several adjoining tracts in one survey. At first the privilege of taking in adjoining vacancy over and above the quantities originally granted did not attach to this kind of warrants, but this subsequently became the main object of these resurveys. On resurveys lands included in elder surveys were excluded, and allowance made for the deficiency, either in contiguous vacancy or elsewhere. On the other hand, where land had been included in surveys beyond the quantity to which the party was entitled, the excess, denominated 'surplus land,' was claimed by the proprietary; and, as this surplusage was more common than vacancy, it gave rise to numbers of warrants, sometimes demanded by parties when they found that the excess of their grants could not be concealed, and on other occasions issued by direction of the government where information of surplusage was obtained. In 1735 it was determined to grant warrants to the first discoverers, enabling them to make resurveys on the lands of other persons, and to become purchasers of the surplusage found therein.
'All the patents that were issued by the proprietary contained an exception of royal mines, and we understand those terms to mean mines of gold and silver; and the consequence, was that they did not pass by these grants, but remained in the proprietary, as his separate property. Notwithstanding the common-law maxim as to the ownership of property, 'cujus est solum, ejus est usque ad caelum,' there may be two separate owners of the same land. A man may own the surface of the ground, and underneath the surface may be owned by another person; so that, as the patent issued with that reservation, the proprietary remained the owner of the mines.
The present owners of the land, deriving title by mesne conveyances from the patents, claim that they are entitled to the mines; but, as the patentee did not take the mines of gold and silver, I do not see how the last owner has acquired title thereto. There can be no question here of adverse possession, or title by adverse possession, in the position taken by the claimants to these mines. The then proprietary was divested of his title by the American Revolution. When the Revolution broke out, the British subjects left this country,—perhaps for their country's good; and the effect of the Revolution, I might say, with regard to the royalty that had been reserved by the king, was to transfer it to the state, and the property of the proprietary was confiscated by an act passed by the state in 1780, c.
45, of the session of that year. When you contrast this act of confiscation with the act passed by the congress of the United States during the late Civil War, it will be seen that the latter act subjected the property of those in hostility to the government to seizure and condemnation by judicial proceedings and sale, and directed that the proceeds of the sale should be paid into the treasury of the United States. If any property was seized, and such legal proceedings were not taken, the title never was passed, but remained in the owner. The act of Maryland is much stricter in its terms.
'After a long recital of grievances committed by England, the act of Maryland declares: 'And it is hereby enacted and declared that all property within this state, debts only excepted, belonging to British subjects, shall be seized, and is hereby confiscated to the use of this state.' In section 7, on the assumption that the title was at once vested in the state by the preceding enactments, the act goes on, and directs that certain property, being certain iron works, lands, and stock therein mentioned, 'shall be, and are hereby, appropriated and set apart as a fund for making good and sinking certain bills of credit which had been emitted by the state.' The act further enacted 'that all British property confiscated in virtue of this act, and not thereby appropriated for the redemption of the bills of credit lately emitted by this state, and for the payment of debts, shall be subject to the disposal of the general assembly.'
To remove any doubt of the meaning of the law, in chapter 49 of the same session, it is enacted that certain commissioners shall be appointed, 'for the purpose of preserving all British property seized and confiscated by the act of the present session,' just before referred to, 'and that the said commissioners shall be, and are hereby declared to be, in the full and actual seisin and possession of all British property seized and confiscated by the said act, without any office found, entry, or other act to be done, and the said commissioners shall and may, as soon as may be, appoint proper persons, in all cases that they may think necessary, to enter into and take possession of any part of the said property,' etc. This was a complete divesting, at once, of the title to the property owned by British subjects, and vesting it in the state, or in the commissioners to represent the state. Chapter 51 of the same session goes on, and appropriates the manors owned by the late lord proprietary in several counties to certain purposes; and it provides 'that this state will forever warrant and secure to the purchasers and their heirs any British property sold in pursuance of this act, and will protect them in the peaceable possession thereof.' This was followed by another act, relating to forfeited estates and sales of reversionary rights, where they were estates tail. There was another act in relation to claims against forfeited property by individuals, and section 2 of the latter act provided for the confiscation of the property of British subjects which
may be in the possession of others without any proper claim upon them. All of which shows the scope of the confiscation, and that these acts were intended to reach every piece of property that belonged to British subjects. This intent runs all through them, in fact, and it is not necessary to refer to them in further detail. It is sufficient to say that it was the effort of the state to appropriate everything—every species of property—that belonged to British subjects; and of course that would include mines, as well as anything else. Certain grace was given to the owners of the property. They were allowed a certain time in which to come forward and swear fealty to the state and in that way save their property.
'During the argument an inquiry was made whether the state of Maryland had ever made any reservation, in her patents issued since the Revolution, of mines and quarries, or whether its legislation was silent on that subject, from which it might be inferred that she never intended to confiscate that species of property. A partial answer to that inquiry, at least, is found in chapter 20 of the act of 1783, relating to the sale of confiscated property, by which it is enacted 'that in all sales of the said lands there shall be a reservation of one fifth part of all mines of gold or silver found thereon to this state, which reservation shall be expressed in the deeds for the said lands.' That showed that the subject of the ownership of mines was brought to the attention of the legislature, and that the state assumed itself to be the owner of the mines, as well as of the surface of the land, and hence assumed that granting it would pass the mines, unless there was a reservation; and so the state reserved one fifth in all mines that might be found on this confiscated property. Now, it is true that there is no mention in the legislation of the state in regard to mines or mineral lands, except in connection with the sale of the property, and the only object of any legislation would be directed towards a sale of the property; and it would have been useless to direct any sale of mines in the state at that time, which would account for the absence of legislation on that subject. It was not suspected at that time that any mines existed in the state. If there had been any idea that there were mines existing, there is no room for doubt at all, in view of the spirit manifested in this legislation in the series of acts running nearly twenty years, that the state would have been prompt in declaring as forfeited the interests of British subjects therein. It appears that nothing was ever done by the state that amounted to a relinquishment of any rights that were vested in it by confiscation. If there were any mines, however, they were the property of the state, by another act of the state, which act assumes that the state was the owner of the same by reason of the action taken, which I have before referred to. In the case that I have heretofore cited (Moore v. Smaw) there was no hesitation at all upon the part of the justice, in delivering the opinion of the court,
in holding that, 'at the date of the cession of California to the United States, no minerals of gold or silver had been discovered in the land embraced by the grant to the Fernandez or by the grant to Alavrada, and of course no proceedings had been taken by which any individual interest in them was acquired from the government. They constituted, therefore, at that time, the property of the Mexican nation, and by the cession passed, with all other property of Mexico within the limits of California, to the United States.'
Under the common law of England, there was an implied reservation of mines of gold and silver. Looking at the terms of the cession under the act of 1791, we will find that they are much stronger than those employed in the act of cession of property in California to the United States, because they contained absolute words of cession, while the other does not. The language is 'that all that part of the said territory called 'Columbia' which lies within the limits of this state shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the congress and government of the United States, in full and absolute right, and exclusive jurisdiction, as well as of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States.' These words, of course, are to be taken distributively. Congress and the government were given the full and absolute right over persons, and they are given the full and absolute right to the soil, and exclusive jurisdiction over both person and soil. It is rather difficult to see how they could be more specific in conveying whatever rights the state had in the land and soil. The state, of course, could only transfer to the United States the interest which it had; and to make the matter as clear as possible and remove doubt, a proviso was added: 'That nothing herein contained shall be so construed to vest in the United States any right or property in the soil, so as to affect the rights of individuals therein.' In other words, the state did not undertake to grant away the rights of individuals, but did undertake to give to the United States all her rights, both as to soil and persons who resided in the part of the state ceded. The state relinquished all rights which she had, and at the same time provided that the United States should not have any right in the soil that would affect the rights of individuals. The history that I have given of this property excludes all idea that the law did vest in the individuals the right to the mines. Nobody can doubt that the public domain passed to congress, and that it has always acted upon that assumption in granting patents to vacant land that it has sold; and we can see no reason to doubt that the right of the state to any mines on the land separate from it also passed, by this grant of the territory 'in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon.'
We cannot escape from the conclusion that all public property of the state of Maryland, within the District, passed by the cession, and that the legislature, by its act of cession, transferred all interests in any possible gold mines in this District to the United States.
'But a patent was introduced at the argument, of a later date, from the state of Maryland to Robert Peter, under whom these present owners claim title, and that patent has no reservation of any gold or silver mines; and it was claimed that, for this reason, whatever interest the state formerly had in these mines passed by this patent. That patent was dated in 1803. It will be remembered that the congress of the United States assumed formal jurisdiction over this District, and provides for its government, by the act of February 27, 1801, three years before the date of this patent. The state of Maryland, of course, could not convey land that had already been ceded to the United States. But this paper suggests certain serious inquiries. The patent was a resurvey patent based upon a warrant dated the 12th day of May, 1800, which was nine months before the actual assumption of jurisdiction here by congress; and the first inquiry is whether that did or did not give the parties equitable title, being prior to the time that the land was actually taken possession of under the cession by the congress of the United States. That inquiry suggests one or two questions. The first is: Under the law of Maryland, did the land laws remain in force in that part of the territory ceded until the removal of the seat of government; and, if so, did the issuing of this warrant give an inchoate title,—an equitable title which would prevail against the subsequent acquisition of the same legal title by the United States? The letter of the law seems to be that in all cases of resurveys no equitable title is created until the certificate of survey is returned to the land office. Upon the issuing of the warrants of resurvey the party had two years, under the law, within which to have the survey returned, and pay the fees. It seems to me that no equitable charge could be laid against this property by reason of the issuing of the warrant of resurvey. The patent does not say that that survey was returned to the surveyor's office. The warrant was not issued until 1800, and the patent was not issued until 1803, and the presumption would therefore be that the certificate of survey was not returned until after 1801; so that there is nothing upon the face of this patent which would justify us in saying that there could be an equitable title acquired through the warrant.
'There is a still more important question, and that is whether the state of Maryland at that period could convey any interest, legal or equitable, in the property. In the act of 1791, ceding this property to the United States, there is this proviso: 'That the jurisdiction of the laws of this state over the persons and property of individuals residing within the limits of the cession aforesaid shall not cease or determine until congress shall by law provide for the government thereof, under their jurisdiction, in manner
provided by the article of the constitution before recited.' Now this continues in force the jurisdiction of the laws of the state of Maryland over the persons and property of individuals residing therein. To make that applicable to the present case, it would be necessary to have extended it to the property held by the state, but it seems to me that that extended no further than to say that the laws that affected private rights should continue in force until proper provision was made by congress. See what the consequence would be if another construction had been given to it. The state of Maryland extended to the Virginia shore; and suppose that after this cession, and before 1801, the state of Maryland had undertaken to cede to the state of Virginia the whole bed or bottom of the Potomac river, from its source to its mouth, including that part in the District of Columbia. Doubtless congress could have had something to say about it after the cession had been made. We are satisfied, therefore, that the proviso does not continue in operation the land laws of the state of Maryland, and consequently no title could be derived at the date of this survey and patent, or at the date when the warrant upon which it was based was taken out. We are satisfied that the proviso does not continue in operation the land laws of the state of Maryland as to the public lands owned by the state within the said District, and that consequently no title to such lands could be obtained by patent from the state after the act of 1791.
'At a much later time a citizen of Maryland who owned a tract of land in this District died, making a will disposing of his land, and appointing an executor, and, the executor having declined to act, the chancellor appointed a trustee to carry out the trusts of the will, and the title was declared vested in that trustee, and a sale directed to be made; and the proceedings were in accordance with the law of Maryland. But this court had no hesitation in declaring the whole proceedings null and void, for want of jurisdiction in the chancellor to give the relief asked for.
'Upon the whole case, therefore, we are of the opinion that, if there are any deposits of gold in this ground, they are the property of the United States. This motion upon the part of the government is granted.'
The opinion of the supreme court of the District on the motion to rescind the order directing the commissioners to disregard the evidence relating to the existence of gold deposits was as follows:
(December 14, 1891.)
'Mr. Justice COX. In this matter a motion has been made to rescind the order heretofore passed by this court directing the commissioners to disregard the evidence as to the deposits of gold in two of the tracts, numbered 39 and 42, the former being the property of Shoemaker, and the latter that of Truesdell.
It will be remembered that the conclusion announced by the court was founded upon a patent which was introduced on the part of the government, and dated in 1772, from the proprietor to one White, by which the royal mines—that is, the mines of gold and silver—were expressly reserved to the proprietor, and our argument was that they were derived through confiscation by the state and on behalf of the United States through the cession of 1791, and, if such gold deposits existed there, they were the property of the United States.
The present motion is based upon additional evidence said to have been discovered since the first order.
'The first patent granted to White affecting the premises was on a resurvey in 1760, in which the land was granted without any reservation of royal mines, and it is supposed that those claiming under White were allowed to refer their title back to the first muniments of title, and that it is not affected or vacated by the subsequent patent of 1772, in which there was an express reservation of all royal mines. As to the character of the tenure of land in this country since the Revolution, it has been said that it has become allodial. That is all true, but it must be remembered that at the date of the commencement of these tenures all land in Maryland was held as essentially feudal. In the first place, the charter of Lord Baltimore conveyed to him this land, not to be held by knight's service, but by fealty, and a certain proportion of the precious metals that might be discovered on the land was reserved; and, if Lord Baltimore granted this land in fee simple afterwards, the grantee held, not of the crown, but of him, the lord proprietor. In this charter it is expressly stated that, notwithstanding the statutes of quia emptores, Lord Baltimore was authorized to create minor court barons, and grant patents to lands to be held in fee simple, but upon the rendition of such services, customs, and rents as he should think proper, to be laid by him, and not by the crown, and in all these patents issued by him in fee simple there was that reservation and fealty, at least generally, in place of any other service, so that relation, as to the tenure by which the land was holden, existed all through between the lord proprietor and his grantees, just as it did under the feudal system.
'Now, to go back to the common law. A lessee for life or years could surrender his estate, and take a new estate from the reversioner. Not only could that be done by the tenant, but the acceptance of a new estate by the grantee was itself a surrender of the old one, and that, upon the principle that the two could not consistently stand together, and the acceptance of the latter one necessarily involved a surrender of the first. For instance, if a lessee for years should take a lease for his own life, or that of another man, the acceptance of the latter would necessarily be a surrender of the first; or if a lessee for forty years accept one for twenty-five years, or if a
lessee for life accept a lease for years,—say a lease for twenty years,—the acceptance of the one would invoive a surrender of the other.
Upon the question of what shall be considered in law a surrender of lands it is said in Sheppard's Touchstone, (page 302, Ed. of 1826, with notes by Atherly:) 'If lessee for life or years take a new lease of him in reversion of the same thing in particular contained in the former lease for life or years, this a surrender in law of the first lease, (14 Hen. VILL. c. 15; Wrotesley v. Adams, 1 Plow. 194; Abbot of Westminster v. Clerke, 1 Dyer, 28; Case of Church Wardens, 10 Coke, 67;) as, if lessee, for his own life or another's life, in possession or reversion, take a new lease for years, or a lessee for forty years takes a new lease for fifty years, the first lease in both these cases is surrendered. And this rule holdeth, albeit the second lease be for a less time than the first, as if lessee for life accept a lease for years, or lessee for twenty years accept a lease for two years. Perk, § 617; Ive's Case, 5 Coke, 11; Fitz. Sur. 3; Co. Litt. p. 218, b; 37 Hen. VI. c. 17. And albeit the second lease be avoidable, as being made upon condition; as if lessee for twenty years take a new lease for twenty years, upon condition that, if such a thing happen, the second lease shall be void, and the thing do after happen, in this case both these leases are become void; as where the lessor doth grant the reversion to the lessee upon condition, and, after, the condition is broken. Whitley v. Gough, 2 Dyer, 140, 141. Or if the second lease be made by tenant entail, or the like; as, if a man made a lease for years of land, and then made a feoffment to another of the land, and then take back an estate to him and his wife of the land, and then make a new lease to the lessee for ten years, this is a surrender in law of the first lease; but, if the second lease be merely void, then it is otherwise. Cardinal v. Sackford, 3 Dyer, 272; Wrottesley v. Adams, 2 Dyer, 177, 178; Knight's Case, 5 Coke, 54, 55, Keilw. 70. And therefore, if the lessor do, by words of covenant only, promise to his lessee that he shall have a new lease, and do never actually make it, this is no surrender in law. Whitley v. Gough, 2 Dyer. 140, 141. And this rule, as it seems, holdeth also, albeit the second lease be to the lessee and a stranger, or to the lessee and his wife; and albeit the second lease be by word only, and the first lease be by deed, if so be the thing granted by the lease be such a thing as may pass by word without writing; and albeit the second lease be in another's right, as if the husband have a lease for years in the right of his wife, and then take a new lease to himself in his own name; and albeit the first lease be to begin presently, and the second be to begin at a day to come, or e converso; and albeit there be a mean estate between, as if the land be let to A. for years, and after let to B. for years, to begin after the first term, and the assignee of A. doth take a new lease. Wrottesley v. Adams, 2 Dyer, 178, Pasch. 40 el; Co. Litt, p. 238; Sir Moyle Finch's Case, 6 Coke, 69; Lampet's Case, 10 Coke, 53a; Case of Church Wardens, Id. 67; Ive's Case, 5 Coke, 11; Corbet's Case, 3 Dyer, 280a; Woodhouse's Case, 1 Dyer, 93b; note, 2 Dyer, 112. So, if one demise land for ten years to one, and, after, demise it for ten years to another, to begin at Michaelmas, and, after the first lessee, accept a new lease, in all these cases there is a surrender in law of the first leases. Herreyong and Goddard's Case, 1 Dyer, 46a; Wiscot's Case, 2 Coke, 60. And if there be two lessees for life or years, and one of them take a new lease for
years, this is a surrender of his moiety. Whereby it doth appear that a surrender in law may be made of some estates which cannot be surrendered by a surrender in fait; for 'fortior est dispositio legis quam hominis.' And hence it is that a corporation aggregate may take a surrender in law without deed, although it cannot make an express surrender without deed. Sir Moyle Finch's Case, 6 Coke, 69; Case of Church Wardens, 10 Coke, 67.
'Now, technically, there was no surrender of such a thing as a fee-simple estate at common law. The owner of the estate might reconvey to his grantor or the latter's legal successor, and take a new title. There may have been some particular object in doing that, though, of course, he is supposed to have taken the whole title in the first instance. I do not know that there are any examples of this since the days of the Saxons surrendering their estates to William the Conqueror, and taking them back again under the conditions of feudal tenure imposed by him. Still such a thing could be done as the owner of a fee simple granting back his title, and taking a new grant, if there was any object in doing it. Under the rules promulgated by the proprietary of Maryland, that very thing was permitted; that is, the practice of surrendering the original grant in fee simple, and taking a new title from the lord proprietor. Under these rules the owner of two contiguous estates who might desire to have them resurveyed might surrender them, and take a new title for the two consolidated into one, or the owner of one estate might surrender his grant, and take a new one and of the contiguous vacant land as a new entirety. The rules above referred to expressly provided that special warrants might be issued to resurvey two or more contiguous tracts for the person owning the same, and to lay them out in one entire tract.
'The third section of the instructions issued by the proprietary May 5, 1684, to certain persons whom he, by commission of that——, appointed a land council, and by which their powers and authority were defined, reads as follows: 'To any person or persons haveing two or three or more tracts of land contiguous or adjoining one to the other, you may (upon suit made) grant special warrant to resurvey and lay out the same into one entire tract, with liberty of takeing in or adding thereunto what waste land shall be found contiguous, and grant pattent for the same upon such conditions and tearms as you shall seem meete and reasonable, the person sueing for the same surrendering up the several former grants thereof to our chancellor or chancellors for the time being to be vacated upon record.' Now, here is an express provision that the grantee of the fee simple might surrender his title to the lord proprietor, and take a new title, and for the same reason that at common law prevailed in reference to leases for life and for years; but in that case the provision was not necessary, because, when a new lease was made, it necessarily involved a surrender of the original title,—the original cession. Every one of these grants was a grant of the entire thing, for
the whole property right; and, when one grant was surrendered, a new grant was taken for additional land. The second grant was made upon an entire resurvey of the land. The two estates were different, and the party could not hold both estates. They were not consistent, and that is the result in this very case. Here, in the first place, in 1760, was a patent for six hundred and eighty-one acres granted upon a warrant of resurvey. Upon a resurvey of said patent, in 1772, it was discovered that the land embraced in it was convered in part by patents of several prior patentees; that it contained portions of several older grants, which had been improperly properly included in it, by the lines of one of which older grants it was divided into two distinct and unconnected parts. The surveyor thereupon, in his return of the resurvey, included the one of said parts nearest the beginning, which contained one hundred and fifteen acres, to which he added thirty-six acres of contiguous vacancy, making in all one hundred and fifty-one acres, and for this the patent of 1772 was granted. The patent for the rest of the land is not produced before us; but we may assume that there were two several patents issued, one of which embraced this land, and, of course, it is held under the conditions imposed by the grant. It won't do to say that that part of the land embraced in this patent of one hundred and fifty-one acres is held by the title acquired in 1760, because it is held as a part of a new and entire tract, and upon different terms, and for a different rental, and therefore there is an inconsistency in his claiming to hold the land both under the patent of 1760 and that of 1772. The original entry of six hundred and eightyone one acres has disappeared entirely, and that land is now held under two different patents. Any acceptance of a new lease, providing different terms of rental, and for a different period, involves the surrender of the old lease; and so acceptance of a new grant from the lord proprietor, embracing part of that which was formerly held under the old grant, necessarily involved a surrender of the original title. The requirement that the original patentee shall formally surrender the title to be affected by the new grant has never been rescinded, as far as we are advised. In point of fact, however, the practice has fallen into disuse. It appears from Mr. Kilty's statement that the practice was simply to enter on this certificate of resurvey an order for the patent to be surrendered, but finally the practice of surrendering the old certificate or patent seems to have been abandoned entirely. Now, there were two very good reasons for that—First, it was not necessary because of the very fact that an acceptance of a new title inconsistent with the former operated as a surrender of the former; and, next, because of the doubt that seems to have been raised of the effect of the claims in the matter of priority of some other individual who might in the interim between the old and the new patent have obtained a patent covering the same land, and as between several parties holding under different patents the one who held the old title would be regarded as
retaining whatever interest he acquired under it for the purpose of preserving priorities; but that is altogether a different question from the relation of the tenant and the old proprietor, and, as between them, it seems to be very plain that the acceptance of a new title or a new grant was conceded to supersede the old title, and therefore we think that the new title must stand. There has been something also presented to us to affect our judgment in that particular. 'As another item of evidence it seems that James White originally conveyed his estate to Robert Peter and Adam Stewart, as tenants in common. By an act of the assembly of Maryland the property of all British subjects was confiscated, and under that act Adam Stewart's was confiscated, and certain commissioners were appointed to take charge of the confiscated property, and dispose of it. Adam Stewart's interest in this property was sold by these commissioners. I do not remember the date of the sale, but that is quite immaterial; somewhere about 1785. Afterwards, in 1792, the chancellor made a conveyance of the property which Adam Stewart had thus forfeited to Robert Peter. The deed from the state to Robert Peter. contained no reservation of the mines, and it is claimed that this last deed from the commissioners to Robert Peter of the interest of Stewart vested in Peter all interest in whatever mines might be on the property. An inspection of that instrument will show that it purports to do nothing of the sort. The deed recites that about two hundred and fifty acres of land, which it does not locate anywhere, (the property of Adam Stewart,) were confiscated, and sold to Robert Peter, and the deed professes to convey the property of Adam Stewart, and nothing else. The property that Adam Stewart had was an undivided moiety in the land, and nothing more; and the deed from the chancellor does not on its face purport to convey anything else than exactly the property that was owned by Adam Stewart in conjunction with Robert Peter. The construction of the deed, therefore, does not bear out the claim on the part of the present holders. If it did, however, the result would have to be the same, because the deed from the state was not made until 1792, after the cession of the District to the United States; and the cession passed to the United States all the public domain within the limits of the District,—that is, that part of it that had been a part of the state of Maryland,—because it is said that all of the territory 'is hereby acknowledged to be forever ceded and relinquished to the congress and government of the United States in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon.' If this does not convey all the territory to the United States, then the United States never did acquire it, because that is the only cession by which a conveyance was made of the title to this property to the United States, and its title to it depends upon this cession, and nothing else. All this property in the District that had formerly belonged to Maryland was ceded by this act in 1791, and, that having been done, the state of Maryland could
not thereafter have vested in any one the title to any part of the property. We do not find anything, however, in this circumstances referred to which affects this case.
'A point was made in argument which had not been made before, and not founded upon any new facts in reference to the character of these proceedings before the chancellor upon the application for a repatent. Robert Peter had a resurvey patent in 1803 signed by the chancellor, and founded upon a warrant of resurvey issued in 1800, about six or eight months before congress had passed its law assuming jurisdiction over the District, and we held that that could not pass title to land in the District; but it is claimed that the proceeding before the chancellor, as a judge of the land court, was in its nature a judicial proceeding, and that all such proceedings, and the result of them, are saved by the act of congress which assumed jurisdiction over this District. That is entirely a misconception, we think, of the act of congress. All that it says is this: 'That in all cases where judgments or decrees have been obtained, or hereafter shall be obtained, on suits now pending in any of the courts of the commonwealth of Virginia, or of the state of Maryland, where the defendant resides, or has property within the District of Columbia, it shall be lawful for the plaintiff in such cases, upon filing an exemplification of the record and proceedings in such suit with the clerk of the court of the county where the defendant resides or his property may be found, to sue out writs of execution thereon returnable to the said court, which shall be proceeded on in the same manner as if the judgment or decree had originally been obtained in said court.' Now, this applies only to contests between private parties in which execution may issue, and does not provide for a proceeding in which the state may be a party. The language is exclusively applicable to private parties.
'We think, therefore, upon the whole, that none of the new considerations which have been presented to us shake our former conclusion, and the motion to rescind the order is overruled. What I have said applies to the Shoemaker tract with more force than to the Truesdell tract, because that is admitted to be a new grant, or at least, taken under the patent in 1772, and not derived from a patent in 1760 at all.'
The following opinions were not in the statement of Mr. Justice SHIRAS.
The following is the opinion delivered in the supreme court of the District on the motion to dismiss the petition for condemnation. This opinion was preceded by a statement of facts, which it is unnecessary to reproduce, except as to the grounds of the motion. These grounds were as follows:
'(1) Because the said commission—the petitioners above named have no legal existence, and are without authority to act in the premises, because two members thereof, to wit, Thomas Lincoln Casey, under the designation of 'Chief of Engineers, United States Army,' and Henry M. Roberts, under the designation of the 'Engineer Commissioner of the District of Columbia,' assume to act by virtue of the pretended appointment of the congrgress of the United States, without the intervention, co-operation, or action of the president of the United States, or of any court, or of any executive officer of the United States, thereunto lawfully authorized
'(2) Because, in and by said act, the congress have devolved on the president of the United States, as such, the performance of the essentially judicial function of participating in the appraisement and of adjudicating upon the awards to be made by the commissioners of appraisement in respect of the several parcels or tracts of land designed to be appropriated for the public use designated by said act.
'(3) Because, under the constitution and law, for the purpose of ascertaining what is a just compensation for said property, the respondent is entitled to have the judgment of an impartial and disinterested judicial tribunal, whereas the said act of congress devolves upon the president of the United States, as such, the right to participate in determining what is a just compensation, and to review and approve or disapprove the award; the president, as chief executive of the United States, being not disinterested, but virtually a party to the suit.
'(4) Because, in and by said act, the congress have assumed to control the action of the commissioners designated to appraise the value of the property to be condemned, and to restrict the rights of the respondent, by limiting the amount which shall be allowed in the aggregate for the payment of property embraced within the limits designated as a public park.
'(5) Because, in and by said act, the congress have undertaken to acquire the property within the prescribed limits of the proposed Rock Creek park without the consent of the owners, and upon a compensation limited therein to a fixed sum, to wit, to the sum of $1,200,000, regardless of the adequacy of said sum to fulfill the constitutional requirement of being a just compensation therefor.
'(6) Because, in and by said act, the congress attempt to exercise the right of eminent domain within the District of Columbia for purposes foreign,
manifestly, to the needs and requirements of its exclusive legislation therein, and in violation of the solemn compact and agreement in that behalf made upon the cession of said District by and between the United States, the state of Maryland, and the citizens of the ceded territory, which is set forth and exhibited by the reciprocal legislation of the state of Maryland in 1788, and the second section of the act of the legislative assembly of that state in November, 1791, by the act of congress of the United States approved July 16, 1790, and by the proclamation of the president of the United States, issued in pursuance and approval of said legislation, to wit, on the 24th day of January, 1791.'
(July 8, 1891.)
'Mr. Justice HAGNER. It is proper to consider first the last objection of the series, which denies entirely to the general government the power to condemn property for public uses within the District of Columbia, since, if this position is well taken, it will render unnecessary the examination of any other of the constitutional difficulties relied on by the respondents. This objection is based upon an alleged reservation by the state of Maryland, in the act of 1791, c. 45, § 2, of any authority to exercise the right of eminent domain by the United States within the District of Columbia. It needs no citation of authority to show that the right to take private property for public uses, in exercise of the right of eminent domain, belongs inherently to every nation justly calling
'In support of a proposition leading to such astonishing results the strongest arguments should be presented. That the government would have consented to take possession of the District when ceded by Maryland, hampered by any such condition, is incredible. There were too many offers of territory from different states for its seat of government to render it important for the United States to accept any offer accompanied by any such harmful limitations. After the congress had been besieged by a mob of soldiers in Philadelphia, it became convinced that the seat of government should not be located in a large manufacturing or commercial city. The different states at once became competitors for the establishment of the capital within their borders, and in 1783 Maryland offered Annapolis to the congress of the confederation, accompanied by the pledge of a large sum of money for public buildings; and from that time it was most anxious to secure the location within its own territory.
'Nor could the United States have bound itself to any such condition, however distinctly set forth in the act of cession. The exercise of the right of eminent domain by a sovereign cannot be the creation of grant or compact. It inheres in the existence of an independent government, and comes into being eo instanti with its establishment, and continues as long as the government endures. The United States did not derive the right to exercise it in Louisiana from France, or in Florida from Spain, or in California from Mexico, or in Alaska from Russia. The right was coeval with its proprietorship as sovereign. And the United States could no more have abandoned the exercise of this right within the District of Columbia than it could have bound itself not to declare war or levy taxes without the assent of the legislature of Maryland. But in our opinion no such relinquishment of power can be deduced from the legislation referred to. As soon as the promulgation of the constitution had disclosed the requirements of the United States as to the territory for the seat of government, the state of Maryland, by chapter 46 of 1788, required its representatives in congress to cede to the congress of the United States any district in the state, not exceeding ten miles square, which congress might fix upon and accept for that purpose. The contest respecting the location of the required territory was acrimonious and prolonged, and it was not until July, 1790, that congress accepted portions of the lands tendered by Maryland and Virginia, making together the ten miles square. After the exact boundaries selected had been ascertained and promulgated by the president, on the 21st of December, 1790, Maryland passed an act giving authority to condemn lands in the ceded territory, if necessary, for the erection of the public buildings. By proclamation of President Washington, an
amendment was made in the former survey, and thereupon the principal proprietors of the Maryland portion of the territory executed an agreement by which they undertook to convey their lands to the president, or to such person as he might select, in trust for the use of the city; and these conveyances were executed to Messrs. Beall and Gantt, the selected trustees. It then became requisite that Maryland should recognize the specific appropriation of the reduced amount of its territory in lieu of its former offer of the entire ten miles square; and for this and other purposes connected with the new territory the act of 1791, c. 45, was passed December 19, 1791. The first section recited the proclamations; the conveyances to Beall and Gantt as trustees; that some of the proprietors in the villages of Carrollsburg and Hamburg, as well as some of the proprietors of other lands, had not, from imbecility and other causes, come to any agreement; but that, as a great proportion of all had agreed to the terms recited, the president had directed a city to be laid out, with boundaries designated in the act, etc.; and it was thereupon enacted, in section 2, 'that all that part of said territory, called 'Columbia,' which lies within the limits of this state, shall be, and the same is hereby acknowledged to be, forever ceded and relinquished to the congress and government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the constitution of government of the United States.' Nothing more explicit could be desired, unless an enumeration of the rights ceded was to be attempted.
'But it is argued that the following proviso effectively contains the limitation contended for: 'Provided, that nothing herein contained shall be so construed to vest in the United States any right of property in the soil, so as to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States.' But it is clear the power to exercise the right of eminent domain within the District could not be dependent for its creation or consummation upon the words of the act; for as it was an inseparable incident of independent sovereignty, proprio vigore, it was already applicable to this territory, even while it remained a part of Maryland, as it was to all the other lands within the bounds of the Union. Such a power would not, therefore, be included as one of those 'therein contained' in the statute of 1791, c. 45. But the words in the proviso, doubtless, were considered necessary, and were inserted only to protect private rights of property in such proprietors as had 'not come to any agreement,' because, as the act had already recognized, the agreement had not
been signed by all, but only 'by a very great proportion of the landholders,' and that this action of the majority had induced the president to lay out the city without waiting for the assent of the others. The right of the minority to refuse the terms offered by the authorities was thus properly recognized and secured. But this was very far from a purpose to declare that, in case those owners should not assent to the terms proposed, the United States should not exercise the sovereign right of condemning the property for the public use.
'If the question otherwise admitted of any doubt, that would be removed by a consideration of the twenty-fourth section of the same act, which authorized the commissioners referred to in the act to issue a process, directed to the sheriff of Prince George's county, to summon five freeholders to value the land of such persons as still refused to accept the terms agreed to by the other proprietors, and declared that upon payment of such valuation the said lands should be vested in the commissioners for the use of the city; and the last section of the act repealed the former law of 1790, which for two years had authorized the condemnation of lands for public buildings. It is true the machinery to be used for this condemnation was that of the state, as the United States had not yet organized the local government in the new territory; but the United States, in making condemnations, may use any proper agencies, whether of the several states, or such as may be devised by itself for the purpose. It is inconceivable that the state of Maryland, while specially providing in the act of 1791 for the condemnation of property in the
District, as it had previously done by the act of 1790, should have introduced the proviso referred to, with the purpose of withholding from the general government the power to do that which every independent nation must enjoy as undeniably as it possesses the right to coin money or build ships of war. This act of 1791 was recognized in supplementary acts passed in 1792 and 1793.
'We have been referred to the case of Chesapeake & O. C. Co. v. Union Bank, 4 Cranch, 57, as recognizing in some way the construction of the proviso contended for. It is true Mr. Key, who was of counsel in the case, presented this contention, but it is equally true that the judges who sat in the case unanimously overruled it. The argument of counsel, however eminent, can scarcely prevail over the decision of the court. Canal Co. v. Key, 3 Cranch, C. C., 600, contains the report of a similar appeal for a condemnation in behalf of the canal company of Mr. Key's own land, in which no such point was made. The contention, repeated in the present case, that constitutional rights formerly possessed by Maryland, unless expressly enumerated, did not pass by the cession, is answered by the decision in Alexandria Canal Co. v. City of Georgetown, 12 Pet. 94, where it was held that the bottom of the Potomac, though not mentioned in the act of cession, passed to the United States, without express grant, so as to entitle it to allow to the canal company the privilege of building its piers in the bed of the river. The court of appeals of Maryland, in U. S. v. Manufacturing Co., 21 Md. 119, cites this case with approbation, thus evincing the adoption by the Maryland courts of the principles of the decision.
'But the very Chesapeake & Ohio Canal Cases demonstrate that more than sixty years ago the government regarded itself as entitled to exercise, and did exercise, the right within the District. The charters granted by Virginia and Maryland authorized the construction of the canal, with power to condemn requisite land along its route; but its arrival at tide water depended upon the assent of congress, which was granted by the statute in 1825, though without an express authorization therein to the company to make condemnations. A large number of condemnation proceedings were conducted before our courts in the name of the company, which resulted in the acquisition by the canal of the parcels of land within the District required for its purposes. The proceedings could only have been prosecuted under the authority of the United States; and the government could not have empowered the canal company to conduct such proceedings in its own name, unless it possessed the power itself, since it could not communicate to the company an authority not possessed by the government. The power given by congress, from time to time, to the District of Columbia and to railroad companies to make condemnations in their respective names, is equally evincive of the understanding of congress that the power resided in the United States. The power has also repeatedly been exercised in this District, in the name of the United States, without question. Thus in 1858 (11 St. p. 263) condemnation proceedings were authorized to acquire lands within the District for the Washington aqueduct and numerous awards were made by juries in that year, and confirmed by the circuit court, in cases instituted in the name of the United States, and no objections were interposed by counsel upon the ground now referred to. Under an act of 1872, c. 140, (17 St. p. 83,) condemnations have twice been made in the name of the United States, to enlarge the grounds of the capitol, by commissioners appointed by this court,—the last in 1878. The same statute was invoked in 1857 to acquire the north embankment of the aqueduct bridge in Georgetown, in the name of the United States, under the act of that year. 24 St. p. 85. These acts of congress are referred to as evidence of contemporaneous legislative construction by the government, and acquiescence in their enforcement by all defendants, for so long a period that their correctness should only be questioned upon cogent necessity. State v. Mayhew, 2 Gill, 497.
'More recent instances of the exercise of this power in the name of the United States are shown in the act of 1886, (24 St. p. 13,) authorizing a condemnation by a jury of seven of land for the congressional library; in the act authorizing the secretary of the treasury to purchase or acquire by condemnation, as this court should direct, additional ground for the bureau of
engraving and printing, (25 St. p. 511;) in the act of 1890, June 25, (1 Sess. 51 Cong.) authorizing the secretary of the treasury to acquire by condemnation a square of ground in the city for the purposes of a city post office, by commissioners appointed by this court; and in the act of August 30, 1890, (1 Sess. 51 Cong. 413,) authorizing the board therein named to acquire by condemnation additional lands for the use of the government printing office, through three commissioners to be appointed by this court. Indeed, it is difficult to find a power of government whose exercise in this jurisdiction is more amply allowed and justified by statute and practice of the government than this, the constitutional existence of which has been so positively challenged. We have been thus at what may appear to be needless pains to examine the objection, because, if well founded, it was high time it should be speedily acknowledged, that timely constitutional measures might be adopted to rescue the essential rights of the government in this asserted derelict territory from so exceptional a condition. Fortunately we are entirely satisfied the contention is wholly unfounded. The language of Chief Justice Cranch in Canal Co. v. Key, 3 Cranch, C. C. 605, is so well expressed and forcible that it deserves to be recalled in any discussion of this subject in this tribunal:
"The public right is as much common right as individual right. This public right is not a power exercised merely because the sovereign power cannot be controlled, and therefore in derogation of common right, but it is a constitutional power, primarily assented to by the people themselves, in their original primitive sovereignty, not applicable to any particular individual, but extending equally to all, and creating a lien upon all property, into whose hands soever it may come. The contemplated canal is intended to be a great highway, and no man can be ignorant that he holds his lands always subject to the right of the public to make a highway through it whenever the great interests of the nation or of the state may require it.'
'2. It is next objected that the law is unconstitutional because congress thereby designated the chief of engineers of the army and the engineer commissioner of the District, as members of the commission appointed by the law to select land for the park, and to perform various duties with respect to that function, whereas it is insisted the president, and not congress, has the sole right to appoint officers to discharge such duties. In the consideration of this and the other objections made to the constitutionality of the law before us, we have had in mind the importance of the inquiry; the caution with which even the supreme court approaches such objections, to be heard only by a full bench; and its refusal, in any but a clear case, by sustaining them, to impute to the legislature an infraction of the constitution. Justice Story, in pointing out the true meaning of the principle of the separation of the powers of the government, (which is not declared in the federal constitution in direct words, as in most of the state constitutions, but is enjoined, practically, by assignment of the different powers to the three departments,) declares: 'We are to understand this rather in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of communication or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments, and that such exercise of the whole would subvert the principles of a free constitution.' 2 Story, Const. 525.
'Such an entire separation is never found in practice under any constitution, however positively it may be commanded. The executive, in approving laws, is really acting as a part of the legislature, and the president and the legislature constantly decide many questions judicial in their character. The legislative and judicial branches of the government have the right to make appointments to many offices. Indeed, the power of appointment to office is not a function so intrinsically executive that it necessarily belongs to that department, although its nature is executive, whether it be exercised by a court or by the legislature or the president. Baltimore v. State, 15 Md. 455. Judge Cooley (Const. Lim. 115) makes this
comment on the subject before us: 'The authority that makes the laws has large discretion in determining the means through which they shall be executed, and the performance of many duties which they may provide for by law they may refer either to the chief executive of the state, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty.'
'In conformity with this principle, congress has, in the most marked instances, in a multitude of statutes, specially intrusted the performance of particular duties to officials already charged with duties of the same general description. The most important of these instances are those affecting the judiciary. Among them are the early act of 1802, which directed the justices of the supreme court to sit in the circuit courts, and the recent law of March 3, 1891, which authorizes the justices of the supreme court, and the existing circuit judges, to sit in the newly-established circuit courts of appeals with the district judges and the newly-created circuit judges. It would be endless to refer to the cases at hand in which this has been done. By various provisions of the Revised Statutes of the United States and of the District, the chief of engineers is intrusted with a variety of duties,—among them, the charge of the public buildings and grounds in the District of Columbia; of the Washington aqueduct; of the electrical apparatus of the rooms in the capitol; of suits respecting the obstruction of streets, etc. In the recent legislation of congress the requirement that particular officials shall perform designated duties is frequently repeated; as in 25 St. p. 523, the chief of engineers is required to take charge of the construction of the congres ion 1 library. By the act of August 30, 1890, the secretary of the treasury, the public printer, and the architect of the capitol are empowered to take measures to acquire additional lands for the government printing office; and similar provisions might be indefinitely cited. The duties required of these two army officers in this law are in no degree foreign to their usual and appropriate sphere. Surely they are more germane to the functions of the chief of engineers than the control of electrical lines; and to those of the engineer member of the board of District commissioners, than the granting of liquor licenses, the regulation of hackney coaches, or the appointment of policemen. If the duties of the park commission are really of the multiform and inconsistent character represented in the argument, it is difficult to imagine how one set of men could be found able, constitutionally or mentally, to perform them all. If these army officers are now serving as members of the park commission at the seat of government, it must be assumed they are so acting with the assent and under the orders of their commanding officer, the president, who must be aware of their present occupation. Besides, as the majority of the board is empowered by the law to act in all cases, the three civilian members might legally discharge the duties of the commission, independently of the two army officers, if their appointment were irregular.
'3. It is next objected that the statute is invalid because by it the president is intrusted with certain duties connected with the proceedings to acquire the park. It is insisted, first, that these duties are judicial in their character, and cannot properly be devolved upon the executive; and, next, that his co-operation in the proceedings in the manner provided destroys their essential character of impartiality. There can be no doubt the proceedings to condemn lands in exercise of the right of eminent domain are quasi judicial in character, and have been held as included within the designation of trials at law. But we do not see that the statute enjoins upon the president, or allows him, to participate at all in those trials. The first duty devolved upon him by the law is the appointment of the park commission,—a function which is not obnoxious to either branch of this objection. In the first and second paragraphs of the third section this commission is authorized to negotiate for the purchase of the lands, by agreement with the owners, within thirty days after the filing of the map, at a price to be approved by the president. As this provision applies entirely to a purchase by agreement, and the defendants all refused to sell, its force as to them may be considered as exhausted, and the provision as obsolete, and it cannot possibly operate to their disadvantage.