Opinion of the Court.

charged travel, while the Comptroller claims that, transportation of officer and prisoner being allowed, no travel can be charged." In regard to item 6, the Circuit Court says: "The general rule prescribed by Rev. Stat. § 829, cl. 25, allows the marshal 'for travel, in going only, to serve any process, warrant, attachment or other writ, including writs of subpœna in civil or criminal cases, six cents a mile, to be computed from the place where the process is returned to the place of service.' The explanatory or restrictive provisions as to the cases of two persons served with the same precept, and of more than two writs in behalf of the same party against the same person, emphasize the general rule, and confirm its application to several precepts against different persons for different causes, although served at the same time. This clause of the fee bill, which allows for travel in going only, as a compensation for actual travel in both going and returning, is wholly independent of, and unaffected by, the distinct clause allowing fees for transportation of officer and prisoner, only while the officer has the prisoner in custody, and without any regard to any additional distance which he may be obliged to travel out and back in serving the warrant of arrest or removal. The United States rely on the act of February 22, 1875, c. 95, § 7, which, after providing that all accounts of attorneys, marshals and clerks for mileage and expenses shall be audited, allowed and paid as if the act of June 16, 1874, c. 285, had not been passed, further provides that 'no such officer or person shall become entitled to any allowance for mileage or travel not actually and necessarily performed under the provisions of existing law.' 18 Stat. 334. We concur in the opinion of Attorney General Devens that this last provision, which manifestly includes marshals, does not deny a marshal full travel on two or more writs in his hands at the same time and served at the same place on different persons, inasmuch as his travel is actual and necessary to serve each and every of those writs; but that that provision was intended to apply to cases in which no actual travel is performed in serving process, as, for instance, where the writ is sent through the mail to be served by a deputy at or near the place of service.' 16 Opinions of

Opinion of the Court.

Attorneys General, 165, 169. It follows that by the statute of 1875 the travel to be allowed to the marshal for serving at Cranberry Isle a subpoena from the Circuit Court for the District of Massachusetts must be limited to his actual travel within his district from Portland to Cranberry Isle, and cannot include the constructive travel from Boston to Portland, amounting to $6.48, and that the marshal is entitled to recover the rest of the sums charged for travel to serve precepts." In regard to item 6, the counsel for the United States says that the claim is for travel fee on more than one writ, the writs being served on different persons, in different causes in the course of one trip; and that the same question is involved in No. 783, United States v. Fletcher, submitted at this term. The counsel for the United States, in his brief in No. 783, relies on the same provision of the act of February 22, 1875, c. 95, § 7, (18 Stat. 334,) which, recited above, referring to clerks, marshals, etc., provides that "no such officer or person shall become entitled to any allowance for mileage or travel not actually and necessarily performed under the provisions of existing law." But we think the view of Attorney General Devens, in his opinion of October 10, 1878, (16 Op. Att. Gen. 165, 169,) cited and quoted in the opinion of the Circuit Court in the present case, is the correct view on the subject; and that the item was properly allowed.

Item 9 is as follows: "Transporting prisoners to and from court, $78." In regard to item 9, the agreed statement of facts says: "That this amount was actually paid for hack hire in accordance with the usual practice, and that the charge had always before been allowed. The Comptroller claims that the amount was excessive and the use of hacks unnecessary." In regard to item 9, the Circuit Court says: "The hire of hacks to transport prisoners to and from court is agreed to have been in accordance with the usual practice, and to have always before been allowed, and must be presumed to have been required by the court for the prompt despatch of business." The counsel for the United States claims that it is contrary to law to allow that item; and that the service is covered by the diem fee of $5 for attending court and bringing in and

per

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committing prisoners and witnesscs. But the $5 a day is given to the marshal for his attendance; and it must be presumed that the hack hire was necessary for the prompt despatch of business and for preventing the escape of prisoners. We think the item was properly allowable; and that there is no clear and unequivocal proof of mistake, as against the approval by the Circuit Court, within the principle laid down in United States v. Jones, 134 U. S. 483, 488.

It is also contended by the counsel for the United States that the Circuit Court erred in rendering its judgment in favor of the plaintiff for $1764.12, in the absence of a finding that the payment of that sum would not exceed the maximum compensation of the plaintiff as United States marshal, and the proper expenses of his office. But we think that is a matter which still remains open for adjustment at the Treasury Department.

The Circuit Court, under the discretion given to it by § 15 of the act of 1887, c. 359, 24 Stat. 505, 508, awarded to the plaintiff $59.15 costs, "considering the frivolous and vexatious nature of the objections taken to the greater part" of his claim. The items of costs allowed are not objected to, and do not appear in the record sent up. It must be assumed that the costs were taxed in accordance with the statute, which says that the costs "shall include only what is actually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court."

Judgment affirmed.

SHOEMAKER v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 1197. Argued November 28, 29, 1892. - Decided January 16, 1893.

Land taken in a city for public parks and squares by authority of law, is taken for a public use.

The extent to which such property shall be taken for such use rests wholly in legislative discretion, subject only to the restraint that just compensation must be made.

The proviso in the Maryland act of cession of the District of Columbia, that

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nothing therein contained should be "so construed to vest in the United States any right of property in the soil, as to affect the right of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States," has no reference to the power of eminent domain which belongs to the United States as the grantee in the act of cession.

The United States possess full and unlimited jurisdiction, both of a political and municipal nature, over the District of Columbia.

It is within the constitutional power of Congress, in legislating for the creation of a commission charged with public duties, to provide that some members of it shall be appointed by the President, by and with the advice and consent of the Senate, and that other members of it shall consist of officers in the service pf the United States, who had been appointed by the President and confirmed by the Senate, when the duties of the new office are germane to those of the offices already held by the latter.

Congress may increase the duties of an existing office without rendering it necessary that the incumbent should be again nominated, confirmed and appointed.

The approval by the President of the price to be paid by the United States for private land, condemned for public use in the exercise of the right of eminent domain, is not a judicial act.

An intention expressed by Congress not to go beyon 8 sum named as the aggregate, in condemning land for a park in Washington, is not a direction to appraisers to keep within any given limit in valuing any particular piece of property.

It is competent for the legislature, in providing for the cost of a public park, to assess a proportionate part of it upon property specially benefited.

In condemning lands for a public park, it is competent for the court, in the absence of a legislative direction prescribing the form of the oath to be administered to appraisers, to direct them to take an oath to "faithfully, justly and impartially appraise the value or values of said parcels of land, and of the respective interests therein, to the best of their skill and judgment."

In determining the values of lands so taken appraisers should exercise their own judgment, derived from personal knowledge and inspection of the lands, as well as their knowledge derived from the evidence adduced by the parties.

An appellate court will not interfere with the report of commissioners, (or appraisers,) in such case, to correct the amounts reported, except in case of gross error showing prejudice, corruption or plain mistake.

If there were any deposits of gold in the land condemned for the Rock Creek Park in Washington, those deposits were the property of the United States.

The filing of a map of the land proposed to be taken for the Rock Creek Park, made under § 3 of the act of September 27, 1890, 26 Stat. 492, c.

Statement of the Case.

1001, was not a finalty, and did not commit the commissioners to taking all the tracts included in it.

The owners of the tracts condemned for that park are not entitled to interést upon the respective sums assessed as damages for the taking.

UNDER the title of "An act authorizing the establishing of a public park in the District of Columbia," an act of Congress was approved on September 27, 1890, 26 Stat. 492, c. 1001, directing that a tract of land lying on both sides of Rock Creek, and within certain limits named in the act, be secured as thereinafter set out, and be perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States. The act provided that the whole tract to be selected and condemned should not exceed two thousand acres, and that the cost thereof should not be in excess of a certain amount appropriated.

It was provided that the Chief of Engineers of the United States Army, the Engineer Commissioner of the District of Columbia, and three citizens to be appointed by the President, by and with the advice and consent of the Senate, be, and they were by the act, created a commission (a majority of which should have power always to act) to select the land for the said park, of the quantity and within the limits prescribed, and to have the same surveyed by the assistant to the said Engineer Commissioner of the District of Columbia in charge of public highways.

The means to be employed in the ascertainment of the value of the lands to be selected, and in the acquirement of ownership and possession thereof by the United States, were provided for in sections 3, 4 and 5 of the act, which were as follows:

"SEC. 3. That the said commission shall cause to be made an accurate map of said Rock Creek Park, showing the location, quantity and character of each parcel of private property to be taken for such purpose, with the names of the respective owners inscribed thereon, which map shall be filed and recorded in the public records of the District of Columbia, and from and after the date of filing said map the several tracts and parcels of land embraced in said Rock Creek Park shall be held as condemned for public uses, and the title thereof