
    THE UNITED STATES vs. GLEN W. COOPER et al.
    Eminent Domain; Constitutional Eaw.
    1. The power to take private property for public uses by virtue of the right of eminent domain may be exercised by the General Government as well in the District of Columbia as elsewhere in the United States.
    2. An Act of Congress providing for the condemnation of land for public uses and creating a commission of five to select and appraise the value of the land, three of whom are to be appointed by the President, the other two being Army Officers specially designated by the act itself, is not unconstitutional because of such designation.
    3. Nor is the act unconstitutional because it provides that the values fixed by the Commission are not to be paid unless the President shall decide the same to be reasonable.
    4. The condemnation of land for a public park is á taking of land for ■public uses within the meaning of the Constitution.
    Decided July, 1891.
    The Chief Justice and Justices Hagner, Cox and James sitting:
    Hearing in General Term in the first instance of a motion to dismiss a petition for an asssessment of values of land under the Act of Congress, September 27, 1890, entitled, “An act authorizing the establishing of a public park in the District of Columbia.”
    
      Motion denied.
    
    Statement oe the Case.
    This was a proceeding instituted under the Act of Congress entitled “An act authorizing the establishment of a public park in the District of Columbia,” approved September 27, 1890. The act provides for a Commission composed of the Chief Engineer of the Army, the Engineer Commissioner of the District and three citizens to be appointed by the President of the United States with the consent of the Senate, whose duty it was made to select land for a park to be called Rock Creek Park, and further provides that if the Commission shall be unable, by agreement with the owners, to purchase all the land so selected and condemned, within thirty days after the condemnation, at a price approved by the President, it shall, after the expiration of the thirty days, make application to the Supreme Court of the District of Columbia, by . petition, at any general or special term for assessment of the value of such land as it has been unable to purchase.- The Commission and the owners being unable to agree the petition above provided for was accordingly filed, whereupon certain owners of the land selected and condemned filed a motion to dismiss the petition upon the following grounds:
    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 Rincoln Casey, under the designation of Chief of Engineers, United States Army, and Henry M. Robert, under the designation of the Engineer Commissioner of the District of Columbia, assume to act by virtue of the pretended appointment of the Congress 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 severa! 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 attempts to exercise the right of eminent domain within the District of Columbia for purposes foreign, manifestly, to the needs and requirements of its exclusive legislation therein and in violation of the solemn compact and agreement in that behalf made upon the cession of said District by and between the United States, the State of Maryland, and the citizens of the ceded territory, which is set forth and exhibited by the reciprocal legislation of the State of Maryland in 1788, and the second section of the act of the Regislative 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 ofJanuary, 1791.
    The Case was heard in the General Term in the first instance.
    Messrs. Shellabarger & Wilson and Tallmadge A. Rambert for the motion.
    
      The first ground of objection to the Act authorizing the park, is that the officers constituting the commission are improperly appointed.
    These consist, first, of two officers holding commissions in the United States Army and in the Engineer Corps thereof, and secondly, of three civilians. The former are designated by the Act, by official description, to serve upon the commission, the latter are therein directed to be appointed by the President by and with the advice of the Senate.
    The Senate cannot originate an appointment; its constitutional action is confined to a simple affirmation or rejection of the President’s nomination ; and such nomination fails whenever it disagrees with them. 3 Opinions Attorney General, 188.
    Even in States, whe^e the greatest latitude of construction has been allowed to the assumption of legislative powers, it is held that, when the constitution defines the qualifications of the officer, it is not in the power of theTégislature to change or superadd to them, unless the power to do so had been expressly or by necessary implication conferred by the Constitution itself. Cooley, p. 64.
    It is incompetent for Congress to devolve on existing officers duties which are distinctly alien to the duties of their respective offices, ex. gr. on executive officers, judicial duties and e co?werso. This position of respondents is sustained by the very citation which is made on the adverse brief from Cooley, p. 115, and by the cases of Bridges vs. Shallcross, 6 W. Va., 562, and Baltimore vs. State, 15 Md., 376.
    When, therefore, to the purely executive function of Chief of Engineers, United States Army, arid Engineer Commissioner of the District of Columbia, Congress adds, in this act, the jtidicial duty of assessing benefits on neighboring lands, it is clear that the attempt is repugnant to Section 2, Article 2, of the Federal Constitution, and void.^ The case of Stuart vs. Laird, 1 Cr., 299, cited at page 8 of the government’s brief, was the imposition upon existing judges of new duties of s. judicial Yiná, and conforms to the position which is contended.for by respondents.
    
      Hence, we submit, tliat the appointment of the commission is wholly irregular and void:
    The act is unconstitutional, because:
    
      (a) Congress has, therein, sought to devolve on the President of tne United States, as such, performance of the essentially judicial function of participating in the appraisement and of adj udicating upon the awards to be made by the com ■ missioners of appraisement; and
    
      (b) Congress has, thereby, sought to devolve upon the. President of the United States, as such, the right to participate in determining what is a just compensation, and review and approve or disapprove the awards, the President, as Chief Executive of the United States, being not disinterested, but virtually a.party tó the suit, 1 Cooley, 583; Sill vs. Corning, 15 N. Y., 297; Kohl vs. The United States, 91 U. S., 367-375; Rewis on Em. Dom., sec. 315; Rich vs. Chicago, 59 Ill., 53; Cook vs. Park Commissioners, 61 Ill., 118; Mills Em. Dom., sec. 126; State vs. Messenger, 27 Minn., 519; State vs. Bruggerman, 31 Minn., 493.
    Mills Em. Dom, sec. 85, says :
    1 ‘ The sovereign cannot assess the damages in the case of a condemnation by himself, nor can the State by legislation fix the amount to be paid.”
    To this point is cited, Charles River Bridge vs. Warren Bridge, 11 Pet., 420; Van Horn vs. Dorrence, 2 Dal., 304; Rangford vs. Commissioners, 16 Minn. 375; Rich v. Chicago, 59 Ill., 58; Cook vs. Park Commissioners, 81 Ill., 119.
    The same author says, section 85:
    “ An arbritrary schedule of prices to be paid cannot be established, but there must be a fair appraisement by an independent tribunal. A statute which undertakes to limit the compensation to be paid for property is void.” Citing Tripp vs. Overocker, 7 Col. 772; Aimes vs. Lake Superior R. R., 21 Minn., 241; State vs. Messenger, 27 Minn, 119; Hessler vs. Commissioner, 53 Ill., 105; Powers vs. Bears, 11 Wis., 213; California vs. Scott, 4 Cal., 114.
    
      ‘' A statute authorizing the taking of private property against the owners consent must be strictly construed.” Thatcher vs. Powell, 6 Wheat, 119; The Commissioners of Amsterdam, 96 N. Y., 351; Sharpshooters Association vs. Commissioners, 34 Mich. 37; Cooley Const., Lim. 529.
    Judicial acts cannot be performed by the Executive. Boon vs. Patterson, 98 U. S., 406; The Case of Hayburn, 2 Dall, 409-10; Wilson vs. Rosoe, 1 Blatchf., 99; Ferrira vs. Howard, 13 How, 43; Story on Const., sec. 1517.
    The act is repugnant to the 5th Article in addition to, and amendment of, the Constitution, because
    (c.) Congress has 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 respondents 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. And,
    
      (d.~) Congress has 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 in the act to a fixed sum, to-wit, to the sum of $1,200,000, regardless altogether of the adequacy of said sum to fulfill the Constitutional requirement of being a just compensation.
    1 ‘ The sovereign cannot assess the damages in the case of condemnation by himself, nor can a State, by legislation, fix the amount to be paid.” Charles River Bridge vs. Warren Bridge, 11 Pet., 420; Van Horn vs. Dorrence, 2 Dall., 304; Rich vs. City of Chicago, 39 Ill., 286; Langford vs. Commissioners, 16 Minn., 375; Mills Em. Dom., sec. 85.
    ‘ ‘ An arbitrary schedule of prices to be paid cannot be established, but there must be a fair appraisement by an independent tribunal.” Mills Em. Dom., sec. 85, citing Cunningham vs. Kennell, 33 Ga., 625; Cox vs. Cummings, 33 Ga., 529; Pennsylvania R. R. Co., vs. Balt. & Ohio R. R. Co., 60 Md., 263; Trip vs. Overocker, 7 Col., 72.
    
      The act is open to serious, if not fatal, objection in this, that,
    
      (e). It tends to avoid and set aside a compact with a Sovereign State, for the making of which the government has received consideration from the State and its citizens, and to which the faith of the government is solemnly pledged.
    Counsel for the commission assert that the point under consideration has never been heretofore raised. In this he is mistaken. It was distinctly made in the case of the Chesapeake and Ohio Canal Co., vs. Union Bank of Georgetown, 4 Cr. C. C., 75, and referred to, but, for reasons stated therein; not adjudicated upon by the court.
    That the terms upon which the cession of territory was made by Maryland, accepted by the United States and acquiesced in by the inhabitants of the ceded District, constituted a contract ol binding obligation, was recognized fully by the Supreme Court of the United States in deciding the case of Van Ness vs. The Bank, 13 Pet., 19.
    See also Reddall vs. Bryan, 14 Md., 478; Scharf’s History of Maryland, 570-572.
    The United States Attorney for the District of Columbia, for the United States, and Mr. R. Ross Perry, for the Commission, opposed the motion.
    The attention of the Court is called to the decisions of the Supreme Court of the United States upon the subject of eminent domain. These decisions have been numerous. There is not a point made by counsel in support of this motion which has hot been covered by them.
    Beginning with the case of Calder vs. Bull, 3 Dallas, 386, decided in 1798, they extend to and include the case of Cherokee Nation v. Southern Kansas Railway Company, 135 U. S. 641, decided May 19, 1890. In the following list the more important of them are italicized: Calder vs. Bull, 3 Dallas, 386; Baron vs. Baltimore, 7 Peters, 243; Charles River Bridge vs. Warren Bridge, 11 Peters, 420; West River Bridge vs. Dix, 6 Howard, 507; U. S. vs. Chicago, 7 Howard, 185; B. & S. R. R. Co. vs. Nesbit, 10 Howard, 395; Richmond R. R vs. Louisa R. R., 13 Howard, 71; Withers vs. Buckley, 20 Howard, 84; Pumpelly vs. Green Bay Co., 13 Wallace, 166; Garrison vs. New York, 21 Wallace, 196; Secombe vs. R.R. Co., 23 Wallace, 108; Kohl vs. U. S., 91 U. S., 367; U. S. vs. Fox, 94 U. S., 315; R. R. Co. vs. Richmond, 96 U. S., 521; Boom Co. vs. Patterson, 98 U. S., 403; Transportation Co. vs. Chicago, 99 U. S., 635; Langford vs. U. S., 101 U. S., 341; Kennedy vs. Indianapolis, 103 U. S., 599; Chicago vs. Tebbetts, 104 U. S., 120; Greenwood vs. Freight Co., 105 U. S., 13; U. S. vs. Jones, 109 U. S., 513; U. S. vs. Great Falls Manufacturing Co., 112 U. S. 645; Head vs. Amoskeag M’f’g Co., 113 U. S. 9; Wurtz vs. Hoagland, 114 U. S. 606; Kerr v. South Park Commissions, 117 U. S. 379.
    Great Falls M’f’g Co. vs. Att’y-Gen’l, 124 U. S. 581; Searl vs. School District No. 2, 133 U. S. 553; Cherokee Nation vs. R. R. Co., 135 U. S. 656.
    It is not contended that the Commission i,s not composed of United States officers properly appointed. But it is said that it is unconstitutional for Congress to assign specific duties to certain existing officers of the United States.
    This is the whole question.
    One sentence of Judge Cooley is sufficient in this connection.
    “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.” Cooley on Constitutional Rimitations, *p. 115.
    In the next sentence the boundaries of this doctrine are defined by the same master: “Such.powers as are specially conferred by the Constitution upon the governor, or upon any other specified officer, the legislature cannot require or authorize to be performed by any other officer or authority, and from those duties which the Constitution requires of him he cannot be excused by law. But other powers or duties the executive cannot exercise or assume, except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or confide to other hands.” Ibid.
    See also Bridges vs. Shallcross, 6 W. Va. 562; Baltimore vs. State, 15 Md. 376.
    It is said that this act is unconstitutional because, 1st, the values appraised are subject to the approval of the President, and thereby an unconstitutional duty is imposed upon him; and 2d, because this approval is such an intervention of the President in the assessment of values as deprives the owners “of the judgment of an impartial and disinterested judicial tribunal” upon that subject-matter.
    The statement of this proposition is its refutation. Nevertheless, it is proper to add a brief reply. In the case of Garrison vs. City of New York, 21 Wallace, 204, the Supreme Court say: “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 authorize 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.” This language was quoted with approval by the same Court in 1889, in the case of Searl vs. School District, 133 U. S. 562.
    See also United States vs. Jones, 109 U. S. 518; Key vs. Frelinghuysen, 110 U. S. 63; U. S., ex rel. Boynton vs. Blaine, 139 U. S., 306.
    It is said that the act places a limit upon the compensation to be fixed by the appraisers; this is incorrect. The act says that these lands are taken “subject to the payment of just compensation." Again, it says that three competent and disinterested commissioners shall “appraise the valu,e" of the land. No limitations are imposed in the appraisement of this value. The act almost in terms reads thus: So many of 2,000 acres shall be taken as can be bought for not more than $1,200,000. It says to the Park Commissioners: “If you can buy 1,900 acres for your money, buy them; if only 1,000 acres, then buy them'; if only 500, then buy them, provided in any event that the President approve the price.”
    In the case of Great Falls Manufacturing Co, vs. Attorney-General, decided in 1887, 134 U. S., pp. 596, 597, 599, the Supreme Court say : ‘ ‘ But even if it be true that some part of the land actually occupied by the Government is not within the survey and map, still, the United States are under an obligation imposed by the Constitution to make just compensation for all that has béen in fact taken and is retained for the proposed dam. * * * This view cannot work any permanent injury to the plaintiff, for that act expressly declares that the absolute title to the premises in question shall not vest in the United States until the owner receives payment therefor; that is, the Government holds the premises for public use, subject to the condition imposed by the Constitution and by the Act of Congress that it will, without unreasonable delay, make such compensation therefor as may be awarded by the tribunal to which the whole subject has been submitted. It is to be assumed that the United States is incapable of bad faith, and that Congress will promptly make the necessary appropriation whenever the amount of compensation has been ascertained in the modes prescribed by the act of 1882.
    The last point relied upon for the motion is one that counsel only consider from respect to those who make .it. In substance it is this : that by a solemn pact with the State of Maryland the United States has undertaken ‘1 not to acquire any right of property in the soil ’ ’ of the District of Columbia “ as to affect the rights of individuals therein otherwise than as the same shall or may be transferred by such individuals to the United States.”
    The construction of the Act of Assembly in question is, it is submitted, simple. Its terms were very absolute, and it was with reason feared that the United States might have good ground to claim that by its provisions' the lord paramount, in this case the State of Maryland, had vested in the ’United States title to all lands in the ceded territory, and that private owners of these lands would have to look to Maryland for compensation. To prevent this construction the Tegislature added, immediately after the words quoted above, this proviso: “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.
    This legislation has been frequently considered by the Supreme Court of the United States. See United States vs. Simms, 1 Cranch, 252; Reily vs. Lamar, 2 Cranch, 356; Hefburn vs. Ellzey, 2 Cranch, 451,
    ■ In Young vs. Bank of Alexandria, 4 Cranch, 395, it was held that the power of legislation over the county of Alexandria, in the District, remained in Virginia until exercised by Congress. In Korn vs. Mutual Assurance Society, 6 Cranch, 192, the Supreme Court held that the separation of Alexandria from the State of Virginia had no effect upon the existing contracts of individuals. In the case of Beatty’s administrators vs. Burne’s administrators, 8 Cranch, 102, it was claimed that the Maryland act in question conveyed to the United States the vacant and unappropriated lands in the District. It was contended in this case by the author of ‘ ‘The Star-Spangled Banner’ ’ that Congress could not accept nor the Tegislature of Maryland convey the soil of the District.
    In reply counsel called attention to the broad language of the act with its proviso, and said: “This implies an intention that the right of soil should vest in the United States 
      wherever the rights of individuals should not be affected thereby Whereto Key rejoined: “The State of Maryland had sovereign rights and private rights. She meant to grant only her sovereign rights.” The Court decided the case upon another point, but no one thought of questioning the statement of counsel that at least Maryland had granted her sovereign rights over the soil to the United States. In the case of Mutual Assurance Society vs. Watts’ executor, 1 Wheaton, 279, the court held that the mere change of sovereignty over Alexandria county produced no change in the state of rights existing in the soil; that the lien created by an act of Virginia prior to the cession of the soil was ‘ ‘not one of' those cases in which tenure attaches to an individual a particular characteristic or obligation; such cases arise exclusively between the oc clip ant of the soil and the sovereignty which presides immediately over the Territory.” Such a characteristic is eminent domain. In Doughborough vs. Blake, 5 Wheaton, 317, the Supreme Court pronounced the legislative power of Congress over this District to be so absolute as to authorize the levy of a capitation tax on its inhabitants.
    It will be observed that in none of these decisions is the point mooted that the sovereign jurisdiction over the lands within the District was conveyed only in a limited, restricted way from Maryland to tjie United States.
   Mr. Justice Hag-nb®.

delivered the opinion of the Court:

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,' Ch. 45, Sec. 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 itself independent and sovereign — that the power is so far reaching that it extends in case of necessity to the right of disposing of all the wealth of the country — that this authority belongs to every State in the Union — that it existed in the General Government independently of and before the adoption of the Fifth Amendment of the Constitution, which only imposed a limitation to its exercise; and that, (in the language of the Supreme Court, in Cherokee vs. Kansas R.R., 135 U. S., 667,) “all lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the General Government, to take them for such objects as are germane to the execution of the powers granted to it, provided they are not taken without just compensation being made to the owner.”

In this declaration of the universal powers of the Government, there is no foot of land from the Atlantic to the furthermost limits of the Aleutian Islands, which is excepted. But if the contention now under consideration be correct, this District, the seat of Government and centre of the power whose pulsations are felt to its remotest frontiers, is alone exempt from its influence. It would result, that if the Government in anticipation of war, believed it expedient or necessary to the public welfare to possess itself of an advantageous strategic point within this territory, placed by the Constitution under its exclusive jurisdiction, and fortify it in advance of the threatened danger, the avarice or disloyalty of the owner could absolutely prevent its acquisition.

' Of course Maryland now can have no such right in the ceded territory ; and hence the private property here would be held by a tenure different and superior to that known, probably, in any civilized country.

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 Uouisiana 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 Uegislature 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 23d of December, 1790, Maryland passed an act giving authority to condemn lands in the ceded territory, if necessary, for the erection of the public buildings. By proclamation of President Washington, an amendment was made in the former survey ; and thereupon the principal proprietors of the Maryland portion of the territory, executed an agreement by which they undertook to convey their lands to the President or to such person as he might select, in trust for the use of the city ; and these conveyances were executed to Messrs. Beall and Gantt, the selected trustees. It then became requisite that Maryland should recognize the specific appropriation of the reduced amount of its territory in lieu of its former offer of the entire ten miles square, and for this and other purposes connected with the new territory, the Act of 1791, Chap. 45, was passed December 23, 1791. The first section recited the proclamations ; the conveyances to Beall and Gantt as trustees; that some of the proprietors in the villages of Carollsburg 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 Sec. 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 individuáis 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 sovereignity, 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, Chap. 46. '

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 24th section of the same act, which authorized the Commissioners referred to in the act to issue a process directed to the sheriff of Prince George’s County to summon five freeholders to value the land of such persons as still refused to accept the terms agreed to by the other proprietors; and declared that upon payment of such valuation, the said lands' should be vested in the Commissioners for the use of the city; and the last section of the act repealed the former law of 1790, which for two years had authorized the condemnation of lands for public buildings. It is true the machinery to be used for this condemnation was that of the State, as the United States had not yet organized the local government in the new territory; but the United States, in making condemnations may use any proper agencies, whether of the several States or such as may be devised by itself for the purpose.

It is inconceivable that the State of Maryland, while specially providing in the act of 1791 for the condemnation of property in the District, as it had previously done by the act of 1790, should have introduced the' proviso referred to, with the purpose of withholding from the General Government the power to do that which every independent nation must enjoy as undeniably as it possesses the right to coin money or build ships of war. This Act of 1791 was recognized in supplementary acts passed in 1792 and 1793.

We have been referred to the case of the Chesapeake and Ohio Canal Co. vs. Union Bank, 4 Cranch, 757, 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. 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. vs. City of Georgetown, 12 Peters, 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 Washington Aqueduct vs. Great Falls Manufacturing Company, 21 Md., cites this case with approbation, thus evincing the adoption by the Maryland courts of the principles of the decision.

But the very Chesapeake and 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 tidewater 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, (n Statutes, 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 the Act of 1872, Ch. 140, (17 Stats., 83,) condemnations have twice been made in the name of the United States, to enlarge the grounds of the Capital, 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 (Vol. 24, 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. Stat. of Maryland, 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 Stat., 13) authorizing a condemnation by a jury of seven of land for the Congressional Uibrary; in the Act authorizing the Secretary of the Treasury to purchase or acquire by condemnation, as this Court should direct, additional ground for the Bureau of Engraving and Printing (25 Stats., 511); in the Act of 1890, June 55, (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, (1st Sess., 51st 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 Chesapeake and Ohio Canal Co. vs. Key, 3 Cr. 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 the 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 subj ect 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 Eegislature 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 thesé 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 on 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 vs. Police Board, 15 Md. 455.

Judge Cooley (115 Const. Tim.) makes this comment on the subject before us:

1 ‘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.1”

In conformity with this principle, Congress has in the most marked instances in a multitude of statutes, specially entrusted 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 entrusted 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 Stats., 523, the Chief of Engineers is required to take charge of the construction of the Congressional Dibrary. 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 case's, 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 entrusted 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. 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 value 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 riot reasonable; namely, to decline to take the property at all.

This is perfectly well settled law, and it scarcely needs the citation of authorities. B. & P. RR. vs. Nesbit, 16 Howard, 396; Stewart, vs. Mayor of Balto., 7 Maryland, 516; Graff vs. Mayor of Balto., 10 Maryland, 552.

The condemnation, until the acceptance of the award and payment of the money, is merely tentative, and the right of abandonment 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 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 guarantee 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 vs. 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 necessarilj'- 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 authorize 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 subj ect 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 powei 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 or parks were designated by him ; and most of the building regulations in force here to-day were promulgated by General 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 Weil and Ea Abra Co. should be re-opened, he was authorized to withhold payment of those awards. His course in concluding to do so was approved by the Supreme Court in Frelinghuysen vs. Key, 110U. S., notwithstanding the contention that it was inexcusable contempt of international awards; and it was further declared by the Court that the President would have the right to act as he did in the absence of a statute. The question came up again in U. S. ex rel. Boynton vs. Blaine 139, U. S. 306, where the same doctrine was announced. In U. S. ex rel. Warden vs. Chandler, Secretary of the Navy, 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 wbat 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 acquisition 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 exceeds 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 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, 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 Charles River Bridge Co. vs. Warren, 11 Peters, 571, relied on by Cooley for the statement, Justice McRean 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 country 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 Pa. R. R. vs. B. & O. R. R., 60 Maryland, 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 pile 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 Commissionsers, 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, Chap. 50 (29 Stats., 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, Chap. .1069, a designated sum -was appropriated for the purchase of land for the use of the Bureau of Kngraving and Printing. It was represented to Congress that the award would probably exceed that amount, and at the last session, by Chap. 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 onty spoken thus to show that the act has not left the land owners 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 124 U. S., 596, “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 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 only competent judge to decide that 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 slaughterhouses 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.  