
    WASHINGTON AND GEORGETOWN RAILROAD COMPANY vs. BOARD OF PUBLIC WORKS. BOARD OF PUBLIC WORKS vs. WASHINGTON AND GEORGETOWN RAILROAD COMPANY.
    In Equity.
    A party may demand a rehearing as a matter of right where four justices decide the question iu any cause and the court is equally divided in opinion. And where the fifth judge takes no part in the decision on account of being interested in the question, the right of the party is the same.
    STATEMENT OE THE CASE.
    This was a motion to vacate an order allowing a re-argument of the appeals in the above-entitled actions. The decrees in the court below were affirmed at the last general term by a divided court. They were heard by the five justices, but when the decision was announced one of the number declined to participate in the judgment on the ground that he was interested in the question decided. The re-argument was granted under the 3d section of the act relating to this court, approved July 21, 1870, 16 Stat., 361, which reads as follows:
    "Whenever, at a session of the court in general term, held by four of the justices, the court shall be equally divided in opinion upon a question involved in any cause argued or submitted to the court, such division of opinion shall be noted on the minutes of the court; and thereupon, and in four days thereafter, either party in such cause may file with the clerk of the court a motion in writing to have such cause re-argued before the five justices; and such re-argument and rehearing shall he had as soon thereafter as conveniently may be."
    J. H. Bradley, jr., and S. Phillips, for the railroad company, contended that—
    The objection now made to a rehearing is, that the statute does not provide for the condition of the present cases.
    They were heard by the jive judges constituting the court. Judge Wylie, one of the number, excused himself in making up the judgment of the court, on the ground of his having an interest in the question decided. If the cases were ordered to be re-argued, the same disqualification would exclude his participation in the second judgment.
    As the statute provides for a re-argument “before the five-justices,” it is self-evident it has no application when the court cannot be composed of that number. Its object was to give a party on a division when the case was heard by four the-right to have the case reheard when the fifth judge was present, but when the fifth judge is a party in interest this becomes impossible, for he cannot be legally present, and the-statute does not legally apply to the case.
    The only object, then, that a re-argument under this condition could in any event accomplish would be a change of opinion among the four judges, but this is not within the intention of the statutory provision.
    We submit, therefore, that the finality of the judgment of affirmance heretofore rendered should remain undisturbed by the action of this court, and that the only revision the party is entitled to is by the Supreme. Court of the United States..
    
      William A. Cook contra.
   By the Court :

This motion presents the point whether a re-argument can be granted under the statute in a cause where the four justices who decided it were equally divided in opinion, and the fifth justice, who was also present at the hearing, declined to take part in the decision of the court on account of being interested in the question. There is no exception in the law, and there is nothing left to the discretion of the court. The party may demand as a matter of right a re-argument in any cause-where a division of opinion is noted in the minutes of the case. The incompetency of the fifth justice may be removed by a change of interest before the cause is heard again, and in that event it can be re-argued before all the justices, and the statute would then properly apply to the case. Besides, it is certainly within the discretionary power of the court to grant a rehearing in any case when it seems desirable. We think the order sought to be vacated was properly entered.

Motion denied.  