Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-06-10
THE ROCK CREEK PARK.
Secretary Foster Presents II. Answer why
the Money Has Not Recu Pald.

This morning in the Court in General Term
the hearing in the case Of the petition Of the
Rock Greek Park commissioners for n man
damus upon the Secretary Of the Treasury TO
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 WINS 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 10 the order OF the said commission the
sum OF Se21.zIS.s5. the said sum being the sum
heretofore ordered by this court 70 be paid into
the registry Of the said commission"
a, Inis respondent, protesting that the psti-
ton tiled against him by the commission np-
pointed to select the land for Rock Greek Park.
under the act OF Congress Of September q.
1850 docs not present case within the special
ministerial powers conferred on this court by
the said act of Congress, and protesting further
damus and not coSnizable as an
original application by this court sitting
In General Term. nevertheless. and without
waving the iurisdi:tional exceptions aforesaid
for answer to the said petition. saith that true
1t is, as stated in the said petition that the snid
acquisitions have not been paid. but that re-
spondent denies that the fact that they. nor
either Of them, have been paid affords ground
for subjecting this respondent 90 the compul-
SION OF q mandamus, which. respondent Ia ad-
vtsed, is process intended to be directed
against public officers Who sc; the Law at defiance
and produce failure OF government
And the respondent further answering smith
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 10 nav
the said requisition. or that he is
acting in bad faith. And this respondent AYERS
that in good faith and with a view only to the
public interests and to proper comfy toward
coordinate branch Of the government ~
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 r.
1892. a member introduced bill in the
II. IL.
titled :" A bill to repeal an act authorizing the
establishing of a park in The District Of Column
bia." and the same was thereupon
referred TO the committee the Dis
trict OF Columbia Congressional Rec
ord, Fifty-second Congress, first session.
p. 27sl; and this respondent saith that on the
same day Mr.. Dockery introduced preamble
aud 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 20 in
stitute an investigation of various matters
connected with the said park. will
more fully appear by reference TO a copy of
the said preamble and resolution herewith
fled and exhibited and marked respondent =
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 adj
vised that be is supported by the practice Of
the executive branch OF the government. And
this respondent. further answering. saith that
the said petition is an 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
| official duty, however much this respondent. if
left to himself. would prefer to have the
guidance and direction of this hon
orable court in carrying ont the said act Of
Congress. And now this respondent. having
fully answered the said petition in SO fer as he
is advised il Is necessary anu proper to make
answer thereto, prays to be hence dismissed
with his proper costs in this behalf wrongfully
sustained
PEREMPToRY ORDER ASKED.
At the completion Of the reading of Secretary
Fosters answer Mr.. Perry moved that per-
emptory order for a mandamus be made on the
Secretary's answer. The request. he said, mas
in the nature of demurrer, as it admitted all
the facts pleaded.
Mr.. Perry then addressed the court on the
motion. explaining that he was at u 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 il 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
proceedings and made abandonment no
longer possible. Therefore, it was incon-
testible that the government bad be-
come legally possessed of the lands and
that it could now take no step nullifying its
action. Mr.. Perry read from decision of the
solicitor general. which decision was duly up
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
il the remedy? On the refusal of public oiii-i
Ger to pay damages which have been lawfully
assessed there could be no question TO the
officer being compelled by mandamus to pay
the same. The Secretary Of the Treasury bad
undoubtedly refused to pay the money, al
though ordered to do SO by the court and there
nothing in the answer denying that fact.
Msndamus being the proper remedy, the
question arose as TO who wus entitled to its aid.
The Supreme Court of the United States had
decided that when plain official duty, requir-
ing no exercise Of discretion. is to be performed
and performance is refused. any person who
will sustain personal injury sr such refusal may
have a mandamus to compel its performance.
1t could, therefore, hardly be disputed that
every one Of the forty-two land owners
affected by the refusal Of the Secre-
tary to pay the money due them into
court had sustained a personal injury, and were
then entitled 70 the Aid Of thit writ But this