Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-07-09
UNCLE SAM AND THE DISTRICT.
Judge Hagner's Opinion on the Question of
Eminent Domain.

1 Eminent Domain.
! THF SOVEREIGNTY OF THE UNITED STATES N THE
DIsTRicT-THE ABsUKDTTY OF The CLAIM THAT
| THE GOVERNMENT HAD LESS RIGHT IN THE TEN
| MILE SQUARE AND ELsEwHERE-PoISTs.
Judge Hagner, as has been previously stated
In The STAR. delivered the opinion of the Su-
preme Court of the District in the Rock Creek
Park condemnation case on Monday, overrul-
ing the objections of the property owners to
the appointment of appraisers. &c. synop.
SIS OF the opinion has already been published
IN 1HE STAR On some of the points raised the
opinion decidei questions Of great interest
The last objection considered and the Judge
says: This objection is based upon the alleged
reservation by the state of Maryland in the act
OF l19l of the right to exercise the right of
eminent domain by the United States within
the District of Columbia. Ii needs no citation
OF authority to show that the power to take pri-
waite 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 80 far-reacb-
ing that II extends In case of necessity TO the
right of disposing of all the wealth of the conn
try; that this right belongs to every state in the
Union: that 1t existed in the general government
independently of and before the adoption of
the fifth amendment of the Constitution. which
only imposed the limitation upon its exercise.
and that In the language of the Supreme Court
I'm Cherokees agt. Kansas railroad, 1876 US. 657)
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 OBJ
Jects 90 are germane to the execution OF the
powers granted to it. provided they are not
taken without just compensation being made
to the owner
NO FOOT OF TERRITORY EXCEPTED.
I'm this declaration of the universal powers
of the government there is no foot of land from
the Atlantic to the furtherest limits of the Aleu-
tian Islands that is excepted. But if the con-
tenuon now under consideration be correct
this District. the seat OF government and center
OF the power. whose pulsations are felt to it's
remotest frontiers, Is alone exempt from its in
huence- Ii would result that il the govern
ment IN anticipation of war believed it expedi-
ent or necessary to the public welfare to possess
Itself OF an advantageous strategic point within
the territory placed by the Constitution under
Its exclusive jurisdiction and fortify il in adj
vance OF threatened danger, the ayarice or
dls.oyaIty OF the owner could absolutely pre-
vent the acquisition of the property. OF course
Maryland can have no such right in the coded
territory. and hence the private property here
would be held as tenure different and supe-
rlor to that known In any civilized country.
In support of proposition leading to such as
should be presented. That the government
would have consented to take possession of the
district coded by Maryland hampered by anv
such condition is incredible. There were too
many oilers of territory from different states
for the seat of government to render it impor-
tant for the United States to accept any ofer
accompanied by any such harmful limitations.
I'm 1888. after the Congress had been besieged
by mob of soldiers in Philadelphia, it became
convinced that the seat of government should
commercial city. Forthwith Maryland offered
her own capital to the Congress of the confed-
Grafton, accompanied by the pledge of a large
sum OF money Tor public buildings; and from
that time 1t had been most anxious to secure
the Location within its own territory.
NOT MATTER OF GRANT OR COMPACT
Nor could the United States have bound
itself by any such condition, however distinctly
set forth in the act of cession. The exercise of
the right of eminent domain by sovereign
cannot be the creature of grant or contract.
1t inheres in the existence of an independent
government and comes into being co Instant
with Its establishment, and continues as long
as the government endures. The United States
did not derive the right to exercise in LOUISE
ana from France or i'll Florida from Spain or
in California from Mexico or in Alaska from
Russia the right was coeval with its prOprle-
torshlp as soyereigns. And the United States
could no more have abandoned the exercise Of
this right within the District of Columbia than
1t could have bound itself not to declare war
or levy taxes without the assent of the legiSla-
ture OF Maryland. But an our opinion no such
REIMBURSEMENT of power Is to be found in the
legislation referred to.
AS soon as the PRONUNCIATION of the Constitu-
ton had disclosed the requirements OF the
United States as to the territory for the seat OF
government. the state of Maryland (chapter 46
Of l1os) required its representative in Congress
to eede to the Congress OF the United States
any district In the state not exceeding ten miles
squarej which Congress might hx upon and &C
cept for that purpose. The contest In Congress
respecting the location of the required terri
tory was very animated and il was not until
July, 1870. that Congress accepted PORTIONS OF
the lands rendered by Maryland and Virginia.
making together the ten miles square. After
the exact boundaries selected had been ascer-
tanned and promulgated by the President, the
23d of December, 1880, Maryland passed an
act giving authority to condemn lands in the
coded territory If necessary for the erection OF
the public buildings. BY proclamation of
President Washington an amendment was made
In the former surrey and thereupon the prin-
clpal proprIetors of the Maryland portion of
the territory executed an agreement by which
they undertook to convey their lands to the
PRESIDENT OF TO such person as be might select,
In trust Tor the use of the city, and these CON
veyances were executed by Messrs. Beall anJ
CAN'T, the selected trustees. 1t had then be-
come necessary that Maryland should recog-
ME the spcclfc appropriation OF the reduced
amount Of its territory i'll lieu of the former
UIfec o. ten miles square. and for this and other
purposes connected with the new territory the
act of December %. 1851, Was passed.
CEDED Is ABSOLUTE RIGHT.
This act is quoted as fully recognizing the
territory and the opinion continues: The first
part of the deed contains the complete cession
and REIMBURSEMENT to the government of the
Maryland part of the territory III full and abso-
lutte right ana exclusive jurisdiction AS we'll of
soil as OF persons pursuant to the eighth section
OF article i Of the Constitution, which gave
Congress the power to exercise exclusive iuris-
dictiOn, IL all cases whatsoever, over the Dis
trict, which might become the seat of govern
ment- Nothing more explicit could be desired.
unless an enumeration CT the rights ceded was
To be attempted. But il IS argued that the pro-
yiso following this language effectively contains
the limitation coDteEded for: Provided tina.
nothing herein contained shall be construed to
vest III the United States any right of property
III the soil 10 affect the rights of indiyidu-
ais therein otherwise than the same shall or
HAY 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 ere
alton or communication upon the words of the
act, for as II WAS al, lnseparable incident of in
dependent sovereignty propria vigore il was
already applicable TO tie new territory even
while 1t remained part of MARYLAND, or it
was. on the other hand. within the bounds of
the Union Such power would not, there