George Shiras, Jr.

“ 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 ”

“ 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. ”

“ 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 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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 ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”