The opinion of the court was delivered by: MCGUIRE
Strictly speaking, the "motion to strike" interposed in these proceedings is in substance and effect a challenge to the array, and is treated as such.
"Motions to strike" do not apply in eminent domain proceedings. Rule 81, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
A condemnation jury, so called, is a misnomer. It is an inquest or commission appointed by the Court under authority of an act of Congress. It differs generally from an ordinary jury in important and essential aspects, and this in the District of Columbia.
(1) It consists of less than 12 persons.
(2) Unanimity is not required.
(3) Its members in the District of Columbia, must be freeholders. American Publishing Co. v. Fisher, 166 U.S. 464, 17 S. Ct. 618, 41 L. Ed. 1079.
There is no constitutional requirement under the provisions of the Fifth Amendment that the just compensation to be paid for property taken for public use shall be required to be determined by a jury as that term is commonly understood. It may (and has been in the District of Columbia, referred to Commissioners, and this comparatively latterly) -- these have been appointed by the Court or by the executive -- or to an inquest composing less or more than the number of men who go to make up the ordinary jury, or to arbitrators. Custiss v. Georgetown & Alexandria Turnpike Co. 6 Cranch 233, 3 L. Ed. 209; Secombe v. Railroad Co., 23 Wall. 108, 117, 118, 23 L. Ed. 67; United States v. Jones, 109 U.S. 513, 519, 3 S. Ct. 346, 27 L. Ed. 1015; Long Island Water-Supply Co. v. Brooklyn, 166 U.S. 685, 17 S. Ct. 718, 41 L. Ed. 1165. See also generally on the subject: Bauman v. Ross, 167 U.S. 548, 17 S. Ct. 966, 42 L. Ed. 270.
This being so Title 8, Sec. 44 U.S.C. 8 U.S.C.A. § 44 does not apply.
Indeed the practice both in England and this country before the adoption of the Constitution, was to have the amount to be paid for the public taking of private property, determined by tribunals other than common law juries. This fact was well known to the framers of our national charter. Lewis -- Eminent Domain: 1909 Ed., Vol. II, Sec. 509, 510 P. 922.
Again under the Fifth Amendment the term due process in condemnation matters has been held to be synonymous with just compensation.
This would ordinarily dispose of the motion except it also by the fact of its being made at all levels a serious accusation against the integrity of the Jury Commission.
Under District law it is required generally that condemnation juries, so called, are to be made up from a special list of persons having the qualifications of jurors, and being also freeholders in the District of Columbia and it is argued as a basis for the "motion to strike," that for a long period of time no colored persons have been called for service on condemnation panels, and that "* * * the systematic exclusion of qualified colored persons from jury service on condemnation panels amounts to ...