Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-06-10
THE ROCK CREEK PARK.
Foster Presents His Answer Why
the Money Haa Not Been Paid.

This morning In the Court In General Term
the hearing in the case Of the petition OF the
Rock Greek Park commissioners for man
damus upon the Secretary Of the Treasury 10
compel him to pay into the registry Of the
court the amounts awarded the land owners
was resumed, Chief Justice bingham, Justice
Hagner and Justice James occupying the bench.
Assistant Attorney General Maury appeared
for the Secretary and read the answer Of that
officer to the rule. 1t was as follows;
The answer Of Charles Foster, Secretary Of
the Treasury Of the United States. to the rule
on him laid by the honorable court to show
cause why he should not be ordered by this
court TO pay forthwith into its registry or 20
pay to the order Of the said commission the
sum OF $50. 2'5.S5, the said sum being the sum
heretofore ordered by this court to be paid into
the registry Of the said commission"
This respondent, protesting that the petit
ton filed against him by the commission ap-
pointed TO select the land for Rock Creek Park
under the act OF Congress Of September q.
1890 does not present a case within the special
ministerial powers conferred on this court by
the said act Of Congress, and protesting further
more, that the said petition is in man
dsmus and not cognizable as an
original application by this court sitting
in General Term, nevertheless, and without
waving the jurisdictional exceptions aforesaid
for answer 20 the said petition. saith that true
II is, rs stated in the said petition that the said
acquisitions have not been paid, but that
spondent denies that the fact that they nor
either of them. have been paid, affords ground
for subjecting this respondent 10 the compul-
sion Of q mandamus, which, respondent is ad-
| vised, is o process intended to be directed
against public officers who set the law at defiance
and produce q failure of government.
And the respondent further answering saith
that, as Secretary Of the Treasury, he is charged
with delicate and important trusts. and cannot
consent to be subjected to judicial orders con-
trolling his discharge Of duty, and without
proof or averment that he has refused to pay
the said requisition. that he is
acting in bad faith. And this respondent AYERS
that in good faith and with view only TO the
public interests and to proper comfy toward
a coordinate branch Of the government. ne
hereinafter stated, he has delayed action, and
for no other reason whatever.
THE COURT HAS No POWER.
And protesting that this honorable court has
no power under the case made in the said petit
ton and under the Constitution and laws Of
the United States to compel discovery Of and
review the reasons and considerations by which
the respondent has been influenced in with
holding payment Of the said acquisitions
up TO this time. this respondent, nevertheless,
further answering, saith that on january 10,
1892, Q member introduced a bill in the
House Of Representatives Oh. II. 2777). en-
titled "A bill TO repeal an act authorizing the
establishing of park in the District of Column
bia," and the same was thereupon
referred to the committee on the Dis
trict Of Columbia Congressional Rec
ord, Fifty-second Congress, first session.
p. 27S); and this respondent saith that on the
same day Mr.. Dockery introduced a preamble
and resolution with reference to the said Rock
Creek Park, which was referred to the COM
mittee on appropriations, and that the object
OF the said preamble and resolution was to in
stitute an investigation of various matters
connected with the said park, will
more fully appear by reference to o copy Of
the said preamble and resolution herewith
filed and exhibited and marked respondents
exhibit A. And this respondent, further an
swering, saith that at the request Of the chair
man Of the committee on appropria-
tons Of the House Of Representatives,
this respondent concluded to with
hold payment temporarily OF the said
acquisitions, in which this respondent is ad-
vised that he is supported by the practice Of
the executive branch Of the government. And
this respondent, further answering. saith that
the said petition is attempt TO deprive the
respondent of all discretion in the premises and
to substitute judicial discretion for the execu-
tive discretion which the law calls for.
And this respondent, further answering, saith
that he cannot voluntarily surrender his right
to determine such questions without committing
what he conseives would be grave breach Of
/
left to himself, would prefer TO have the
guidance and direction OF this hon
orable court in carrying out the said act of
Congress. And now this respondent, having
fully answered the said petition in SO far as he
is advised it Is necessary and proper to make
answer thereto, prays 10 be hence dismissed
with his proper costs in this behalf wrongfully
sustained"
A PEREMPToRY ORDER ASKED.
At the completion Of the reading of Secretary
Fosters answer Mr.. Perry moved that a per-
emptory order for a mandamus be made on the
Secretary's answer. The request, he said, was
in the nature of q demurrer, as II admitted all
the facts pleaded.
Mr.. Perry then addressed the court on the
motion. explaining that be at a loss TO
know just what points the Secretary relied
upon. The Presidents approval Of the values
showed the determination OF the government
to take the tracts in question, and that action
OF the executive vested in each property owner
right of action for the value Of
his property taken. From that moment aban-
donment by the government was rendered i'm
possible. As to the conflict of authority on
this point it was indisputed that once the con-
demning party has taken possession at the price
judicially determined he has by such cleo
ton fixed the status Of the condemnation
longer possible. Therefore, it was incon-
testible that the government had be-
come legally possessed of the lands and
that it could now take no step multiplying its
action. Mr.. Perry read from a decision of the
solicitor general, which decision was duly ap-
proved by the Attorney General. advising the
President that his approval Of the values was
the last step necessary to the acquisition Of the
tracts in question, and the government thereby
became the legal possessor of the tracts.
WHAT Is THE REMEDY?
As to the refusal Of the Secretary of the Treas
ury to pay this money the question was, what
is the remedy? On the refusal Of a public Off
Ger to pay damages which have been lawfully
assessed there could be no question as TO the
officer being compelled by mandsmus to pay
the same. The Secretary Of the Treasury had
undoubtedly refused to pay the money, al
though ordered to do 80 by the court and there
was nothing in the answer denying that fact.
Mandamus being the proper remedy, the
question arose as to who was entitled to its aid
The Supreme Court Of the United States had
decided that when plain official duty, requir-
ing exercise of discretion, is to be performed
and performance is refused, any person who
will sustain personal injury by such refusal may
have o mandamus to compel its performance.
It could, therefore, hardly be disputed that
every one Of the forty-two land owners
affected by the refusal Of the Secre-
tsry to pay the money due them into
court had sustained q personal injury, and were
then entitled to the aid Of thit writ But this
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