implied that the District of Columbia authorities not only are authorized but must first endeavor to purchase real property before undertaking to condemn it. The words "for any other municipal use authorized by Congress", are not subject to the limitation of the principle of statutory construction known as ejusdem generis. It is clear that the purpose of this section, although it is inartistically drawn, was to provide for the acquisition of real property by the District of Columbia for any governmental purpose. Perhaps the enumeration of specific purposes followed by the general clause was unnecessary, but we must take statutes as they are drafted. The Court, therefore, concludes that the District of Columbia Government has power to acquire real property for these improvements by purchase and if it does not succeed in acquiring them by purchase, then by condemnation.
The next objection consists of an attack on the validity of the action of the National Capital Planning Commission. This Commission is a Federal agency and not a local District of Columbia agency and, therefore, in the light of the doctrine of the Frothingham case, is not subject to suit in this case. The Court, however, is not going to limit its consideration to that point, because it has reached the conclusion that on the merits the criticisms leveled at the action of the Commission are not warranted.
The National Capital Planning Commission is an unusual organization. It is not a commission composed of individuals named as members of the commission. It is a commission composed primarily of officers of the government who are designated as members by their titles. In other words, as the incumbents of those offices change, so does the membership of the Commission shift.
The Commission is composed of the Chief of Engineers of the Army, the Engineer Commissioner of the District of Columbia, the Director of the National Park Service, the Commissioner of Public Buildings, the Federal Highway Administrator, the Administrator of the National Capital Transportation Agency, and the Chairmen of the Committees on the District of Columbia of the Senate and of the House of Representatives. In addition, there is a provision for the appointment by the President of five eminent citizens to serve as members of the Commission. In other words, the Commission consists of a number of governmental officials and five citizens from private life. Obviously, the ex officio members of the Commission are not expected to and cannot devote their entire time to its work. On the contrary, their services as members of the Commission are only one feature of their numerous activities. It has become the usage for the ex officio members to appoint alternates to act in their behalf.
It is objected by plaintiffs' counsel that alternates should not have been permitted to vote and that if they had not been permitted to vote, several of these four projects would not have received a sufficient number of votes of approval. It appears, however, and is not denied, that it has been the practice ever since the establishment of the Commission in 1952, to permit alternates to vote. Continuous administrative usage must be given due weight by the courts. The Court perceives no reason or basis for holding that the usage in this instance was in violation of law.
Plaintiffs' counsel argue that in 1929 a predecessor commission had adopted a resolution that under certain circumstances alternates should not vote. That resolution is not binding on the present Commission and was never from its very inception accepted as part of its procedure.
There is a second attack made on the legality of the action of the Commission. Attention is called to the fact that several of the ex officio members of the Commission entered into an agreement prior to the time when that Commission took its official action, by which they determined and committed themselves to approve certain projects in their official capacity. It is urged that by this means they pre-judged the issue and, therefore, were disqualified to vote on the adoption and approval of these projects at a subsequent meeting of the Commission. That contention is not well founded and is lacking in merit. The National Capital Planning Commission is not a judicial, or a quasi-judicial tribunal; it is not a regulatory commission or an adjudicatory body. Manifestly, if it were, it would be inappropriate for members of the Commission to reach a decision or make a commitment which might affect their vote on a matter coming before them as members of the Commission. This Commission, however, is purely and solely an administrative group. It consists of members who have other duties to perform in respect to the very matters in regard to which they vote as members of the Commission. It must be assumed, that the two types of duties will affect each other. Necessarily, for instance, the activities of the Chief of Engineers of the Army, as such, may affect his vote as a member of the Commission. This is entirely proper. The very purpose of creating such a commission was to make the best use of governmental talent. The same may be said concerning other official members of the Commission. Accordingly, no infirmity is discernible in the action of the Commission in approving the plan, merely because some of its members may in the course of their official duties have previously approved parts of the plan in their other capacities.
This discussion disposes of the objections argued and advanced by plaintiffs' counsel that affect all of the four projects involved in this litigation. The Court, as indicated, will dismiss the complaint as to all of the plaintiffs except those who sue as taxpayers of the District of Columbia. It will dismiss the complaint as to the so-called Federal defendants, that is, those defendants who are officers of the Government of the United States, because there is no standing to sue them in the light of the Frothingham case. The pending motions are still to be considered in respect to objections directed individually to specific projects and which have not as yet been argued. The action may be maintained only as against the District of Columbia defendants and only, of course, in behalf of those plaintiffs who are taxpayers of the District of Columbia.