Shoemaker v. United States/Opinion of the Court

by George Shiras, Jr.

United States Supreme Court

147 U.S. 282

Shoemaker  v.  United States

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 opinion ^[1] 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. ^[2]

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.'

Notes

1. 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:
2. 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,

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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

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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

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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

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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

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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.