"Now, therefore, for the purpose of securing to the city of New Orleans the advantages. that will result from locating and permanently maintaining the terminus of the New Orleans Pacific Railway within the limits of the city of New Orleans, as herinabove recited; within the city limits, then this grant shall a view to maintaining and operating the said cease and terminate and be without force or road in connection with and as a part of its effect from the date of such abandonment; through line to and from its terminus in New and upon the further condition that the said Orleans, designated in section of ordinance company, at the time of laying their traek No. 6695, administration series, passed on the upon Thalia street, shall pave said street from ninth day of November, 1880; such line to Pilie street to Rampart street, including all cross the Mississippi river from a poin. at or intersections of said Thalia street, with blocks near Westwego to a point on the east bank of the best hard Boston granite, oblong in of the river in front of the Upper City Park, shape, not less than eleven inches and not late Foucher property; thence to extend by more than fourteen inches in width, and not the best and most practicable route to the[321] less than sixteen inches nor more than twenty-designated terminus, between the new canal, four inches in length, and from nine to ten Claiborne canal and Carrollton avenue: inches in thickness; they shall be well quarried, having parallel sides and ends, and the upper side free from lumps. The blocks adjoining the gutterstones shall be cut at an angle of forty-five degrees with the sides, so as to be laid diagonally, and said pavement shall extend from curb to curb; and the said company shall at the time of laying their track pave with round or cobblestone pavement, laying with gutterstones the gutters of said street, from the end of the block paving at Rampart street to Claiborne street, with the privilege of using for the pavement the cobblestones removed from that part of the street to be paved with square block-the rails to be laid in the pavement so that the top of the [320]rails shall be flush with the surface of the pavement; and upon the further condition that said railway company shall at all times keep said pavement from curb to curb in repair; and the further condition that all construction work within the city limits shall be executed under the direction and supervision of the city surveyor and completed to the satisfaction of the administrator of improvements and the administrator of commerce; and it is further made a condition of this grant that said railway company shall complete its road from the crossing of the Mississippi river, at or near Baton Rouge, to the terminus in this city, within two years from the promulgation of this ordinance. "Sec. 1. Be it ordained by the council of the city of New Orleans, That the New Orleans Pacific Railway Company, or its assigns, be, and are hereby, authorized and empowered to locate and maintain a railroad with all necessary tracks, switches, turnouts, sidings, and structures of every kind convenient, useful, and appurtenant to said railroad, from such point on the river front as its crossings from Westwego shall be located at in the vicinity of the Upper City Park, along the western border of the said city park, and from thence by the best and most practicable route to its designated terminus east of Carrollton avenue. "Sec. 2. Be it further ordained, etc., That the city of New Orleans agrees to lease unto the New Orleans Pacific Railway Company, its successors and assigns, for the period of ninety-nine years, and at the price of five hundred dollars per annum, payable annually in advance, all that strip or parcel of ground on the river front of said Upper City Park, south of Tchoupitoulas street, or south of an extension of Tchoupitoulas street, in a westwardly direction, and between a prolonga tion of the east and west boundary lines of said park to the river, with all the batture formed thereon, or which may form during the term of said lease, with the right to establish and maintain upon said grounds such ferry facilities, wharves, piers, warehouses, yards, tracks, depots, stations, sheds, eleva "Sec. 3. Be it further ordained, That upon the failure of said company to comply within three days with any notice of the department of improvements to repair any portion of the street or streets through which said company shall lay its tracks, they shall be fined twenty-five dollars for each and every day they fail to comply with said notice; said fine to be recoverable before any court of compe-tors, and other structures as shall be necestent jurisdiction." sary and convenient for the transfer of cars, In 1881 the New Orleans Pacific Railway engines, passengers, and freight, and in the Company purchased a railroad already con- transaction of its business. No vessel shall structed by the New Orleans, Mobile & Texas occupy or lie at such wharves without the Railroad Company on the west bank of the consent of said company, its successors or asMississippi river, extending from Bayou signs, and all vessels lying at or using said Goula, a point near Baton Rouge on the west wharves with such consent shall be exempt bank, to Westwego, also on the west bank, from the payment of levee or wharf dues to and just opposite New Orleans. Subsequent-the city of New Orleans; the proceeds of such ly on March 29, 1881, the city council passed lease shall be applied by the city to the im-[322) an ordinance, No. 6938, as follows: provement of said park. "Whereas the New Orleans Pacific Railway "Sec. 3. Be it further ordained, etc., That Company has purchased the road heretofore the said New Orleans Pacific Railway Comconstructed under the charter of the New Or-pany, its successors and assigns, shall have leans, Mobile, & Texas Railroad Company, on the right to extend its tracks from the said the west bank of the Mississippi River, be- ground so leased between the Upper City Park tween Bayou Goula and Westwego, and with and the river front, easterly along saiu river "Sec. 5. Be it further ordained, rights herein granted on Claibo.. shall apply only to a railroad for purposes; that the rights to be gi north of the Claiborne canal to front, and hereby granted along front and in parallel streets, shal railroad for freight purposes only not be used as a thoroughfare for portation of passengers without of this council." "Sec. 2. Be it further ordained, That the trator of commerce; and it is still said New Orleans Pacific Railway Company, made a condition of this grant that or its assigns, be and they are hereby au- way company shall complete its road thorized and empowered to locate, construct, crossing of the Mississippi river, at and maintain an extension of its railroad, Baton Rouge, to its terminus in with all necessary tracks, switches, turnouts, within two years from the promu sidings, and structures of every kind conven- this ordinance. ient and useful and appurtenant to said railroad, upon lines and leve's to be furnished by the city surveyor into and through Claiborne street to Canal street, with the right to construct a passenger depot at or near the intersection of Claiborne street with Canal street; and to operate the same by steam or other wise for the transportation of passengers; Provided, That should it become necessary [317 for the building of depot *or laying of tracks to remove the Claiborne market, then the said New Orleans Pacific Railway Company obli On December 3, 1880, the foll gate themselves to rebuild the same at their nance, numbered 6732, was adop own expense on such lots to be purchased by "Whereas, on the ninth day of the company as the city shall designate. The 1880, the ordinance No. 6695 (adr said market to be rebuilt under the super-series) was duly adopted, gran vision and instructions of the administrator of waterworks and public buildings. New Orleans Pacific Railway Com "Sec. 3. Be it further ordained, That the right to extend its tracks through Front "Sec. 1. Be it ordained by t "Sec. 4. Be it further ordained, That the in pern oad said ter rig reduce rates on specific or particular articles below the rates which the companies were charging on such articles when the decrees were entered. It may well be that on some particular article the railroad companies may deem it wise to make a reduction of the rate, and it may be that the public interests will justify the state board of transportation in ordering such reduction. We have not laid down any cast-iron rule covering each and every separate rate. We only adjudged that the enforcement of the schedules of rates established by the state statute, looking at such rates as a whole, would deprive the railroad companies of the compensation they were legally entitled to receive. We did not pass judgment upon the reasonableness or unreasonableness of the rates on any particular article prescribed by the statute or by the railroad companies. Argued March 21, 22, 1898. Decided May 31, 1898. APPEAL from a decree of the Circuit If the state should by statute, or through its board of transportation, prescribe a new schedule of rates, covering substantially all articles, and which would materially reduce Court of the United States for the District of those charged by the companies respectively, West Virginia restraining the defendants, A. or should by a reduction of rates on a lim B. White, collector, etc., et al., from interited number of articles make its schedule offering with the plaintiff, H. C. Berry, in his rates as a whole, produce the same result, office and in the discharge of his duties as the question will arise whether such gauger at the Hannis distillery at Martinsrates, taking into consideration the rights of burg, West Virginia, and to permit him to the public as well as the rights of carriers, discharge the duties of his office, etc. are consistent with the principles announced versed, and cause remanded with direction to by this court in the opinion heretofore delivered. Of course, the reasonableness of a schedule of rates must be determined by the facts as they exist when it is sought to put such rates into operation. The decrees in the several cases are hereby modified by striking therefrom the words referred to in the application of the appellants. The decree in each case being thus modified is affirmed. 366]A. B. WHITE, Collector of Internal Revenue for the District of West Virginia, et al., Appts., H. C. BERRY. dismiss the suit. Statement by Mr. Justice Harlan: Re Berry in the circuit court of the United States This suit in equity was brought by H. C. B. White, United States collector of internal for the district of West Virginia against A. D. Sutton, Anthony Staubley, and Franklin revenue for that district, A. L. Hoult, John T. Thayer. The bill alleged that in 1893 the plaintiff, Berry, was duly appointed by the Secretary of the Treasury to the position of United mencement of this suit he had acted in that States gauger, and from that time to the comcapacity at the Hannis distillery at Martinsburg, West Virginia; That he was appointed through the recommendation of E. M. Gilkeson, late collector of internal revenue for the above-named dis(trict; (See S. C. Reporter's ed. 366–378.) Distinction between common law and equity That he was paid at the rate of $100 per -equity jurisdiction over removal of pub-month directly from the Treasury Depart lic officers distillery gauger—removal from office. 1 Under the Constitution and laws of the United States the distinction between com. mon law and equity, as existing in England at the time of the separation of the two coun tries, is maintained, although both jurisdic tions are vested in the same courts. 2 A court of equity has no jurisdiction over NOTE-A8 to equity jurisdiction after trial at law, see note to Smith v. M'Iver, 6: 152. As to what remedy at law will prevent remedy in equity, see note to Tyler v. Savage, 36:83. As to when injunction to restrain acts of pubMc officers will be granted, see note to Mississippi v. Johnson, 18:437. ment, and was an officer of the United States government, having taken the required oath of office and executed bond as required by law; *That his oath of office and bond continued[367] good and in force regardless of the personnel of the collector of internal revenue, and he did not hold his position at the discretion of that officer; As to right to remove officers summarily; particular officers; particular provisions; implications; where term of office is fixed; removals for cause; nature of proceeding, see note to Trainor v. Wayne County Auditors (Mich.) 15 L. R. A. 95. That he had honestly, faithfully, and impartially discharged his duties, being especially well equipped and qualified to discharge all the duties appertaining to his office; That the defendant White, collector of internal revenue, had declared his intention to appoint a gauger and three storekeepers to fill the place of the plaintiff and others employed at the distillery at an early date; That the defendants Hoult, Sutton, Staubley, and Thayer had been reinstated, or would be appointed and commissioned, and one of them would be assigned to duty in place of the plaintiff at the Hannis distillery through White, who had openly declared his intention to reinstate the defendants in place of the plaintiff and others; That the plaintiff is a Democrat in politics, was assigned to said office as a Democrat, and had voted the ticket of that political party, while the defendant White was a Republi can; That White had declared his intention to place one of the other four defendants in plaintiff's position because of the latter's political affiliation, and for no other reason, and to appoint and recommend Republicans to fill such places for no other reason than that they were of that political faith; That the plaintiff's office is in the classified service, and belongs to what is known as the Civil Service, and as such he could not be removed, except for cause shown and proved; That by a circular issued by the Secretary of the Treasury it was provided that no removals should be made from any position subject to competitive examination except upon just cause and upon written charges filed with the head of the department or the appointing officer, of which the accused should have full notice and opportunity to make defense; That in department circular No. 119, which was an executive order, the same provisions were made, together with others, and were signed by the Acting Commissioner of Inter[368]mal *Revenue and approved by the Secretary of the Treasury; That the plaintiff was one of the employees of the Treasury Department, was included in the classified service, and was protected from removal for political or religious reasons under the Civil Service laws and rules of the United States, as fully appears from a communication received from the acting president of the Civil Service Commission of date September 10, 1897; That if the defendant White be permitted to remove the plaintiff from his office and position or supplant him by others, the same would be illegal and in violation of law; of the United States who should wilfully violate any provision of the Civil Service act or of the rules established by the Civil Service Commission should be dismissed from office; That under the law the plaintiff had a vested interest in his office, and if White should remove him therefrom or assist in so doing it would be in violation not only of the Civil Service rules but of the plaintiff's vested interest in his office, for which he would not have an adequate remedy at law; That he is able, competent, and willing to discharge the duties of his office, and is unwilling to be summarily dismissed therefrom for no other reason than that he is of opposite politics to those of the defendant White, collector of internal revenue; That the said collector has no power, right, or authority to remove the plaintiff from his office, or to appoint any other to take his place and thereby effect his removal; that the defendants Hoult, Sutton, Staubley, and Thayer have no right or authority to take the oath of office and otherwise qualify and appear to take the position, and thereby assist in the removal of the plaintiff, and as[36 there were no vacancies created either by removals or resignations, and there being 15 per cent now commissioned more than sufficient to perform the duties of storekeepers and gaugers in that district, if they were permitted so to do it would be in violation of law as well as of the rights and vested interests of the plaintiff; and, That unless White be enjoined from so doing he will remove the plaintiff, and unless his codefendants are enjoined from qualifying as officers of the United States to take the place of the plaintiff at the distillery they would in that manner effect the removal of the plaintiff from his office, they having expressed their intention to accept such appointment and assignments. The relief asked was an injunction restraining and prohibiting the defendant White, collector, and all others by and through him, "from removing him from the position of gauger until a vacancy is created according to law, as an officer of the United States aforesaid, and also from recommending, assigning, and appointing any person to the same position, and from proceeding in the attempt to make such removal, and in any other manner interfering with your complainant;" and also, that Hoult, Sutton, Staubley, and Thayer and all other persons be enjoined, restrained, and prohibited "from qualifying as gauger to take the place of your complainant at said distillery, or ir any other way aid or assist in the removal of your said orator, or performing or discharging any of the duties of said office," and for such other and general relief as to equity might seem just and right. That rule 2 of § 3 of the Civil Service rules provides that "no person in the executive In conformity with the motion by the Civil Service shall dismiss or cause to be dis- plaintiff for a temporary restraining order, missed or make any attempt to procure the it was adjudged, ordered, and decreed "that dismissal of or in any manner change the of- A. B. White, United States collector of inficial rank or position of any other person ternal revenue for the district of West Vir therein because of his political or religious ginia, be and is hereby restrained, enjoined, affiliations;" while § 1 of those rules provides and inhibited from recommending, appoint that any person in the executive Civil Serviceling, or aiding in the appointment of A. L in the civil district court for the parish of Orleans, where the same is still pending, to compel the city surveyor by writ of mandamus to furnish such lines and levels. The company also paid $1,000 rent for the two years ending March 8, 1882 and 1883, under an alleged lease of the batture in front of the upper city park and made a tender of $500 for rent under said alleged lease for the year ending March, 1984, and acquired by private ownership four squares of ground adjoining the upper city park, two squares fronting the river and two in the rear thereof. Thereafter, on July 11, 1882, the city coun- [1883, the company demanded from the city cil adopted ordinance No. 7946, as follows: surveyor lines and levels for a track on the "An Ordinance Supplementary to Ordinances river front from Louisiana avenue to Jack6695, 6732 and 6938, Administration Series, son street, and the city surveyor not furGranting certain Rights to the New Or-nishing them, instituted suit June 11, 1883, leans Pacific Railway Company and its Assigns, and Providing for the Selection of a Site for the Claiborne Market. [325] *"Whereas by section 2 of ordinance 6695, administration series, a right was given to the New Orleans Pacific Railway Company, or its assigns, to locate, construct, and maintain an extension of its railroad through Claiborne street, with a right to construct a passenger depot on the neutral ground of Claiborne street, at or near the intersection of Claiborne street with Canal street, with a proviso that should it become necessary for the building of the depot or laying tracks to remove the Claiborne market, then the New Orleans Pacific Railway Company, or its assigns, should rebuild the same at their own expense on such lots as the city shall desig-1880, and referred to in ordinance 6732 of nate; and The record showed that the railroad company did not establish its terminus in the rear of the city of New Orleans at the place designated by ordinance 6695 of November 9, December 3, 1880; that the company did not "Whereas, by ordinances Nos. 6732 and as stated or required in ordinance 6938 of 6938, administration series, certain rights March 29, 1881, make its terminus on the have also been granted to said company and west bank of the Mississippi river at Westits assigns with reference to the said Clai-wego, and there erect it wharves, inclines, borne street and to Thalia street, and the company has built its road from Baton Rouge to New Orleans, crossing Thalia street, and established its terminus in the city limits at Thalia street and the levee, and is preparing also to cross from Westwego to the City Park, and thence to Claiborne street; now, therefore, and structures, necessary for the purpose of crossing the river at that point so as to reach the east bank on the batture in front of the City Park; and that the company did not build its road from the batture along the edge of the park through the designated streets to the point in the rear of the city where the proposed terminus was to be located under and in accordance with the provisions of the city ordinances, which have already been stated. And the record also dis "Sec. 1. Be it ordained by the council of the city of New Orleans, that the administrator of improvements, the administrator of commerce, and the administrator of water-closed that instead of making Westwego its works and public buildings, be, and they are hereby, authorized and directed, within sixty days from the passage of this ordinance, to select such lots as may be needful and proper for a new site for said market; and when such selection shall have been made they shall deposit a proces verbal thereof in the office of the administrator of waterworks and public buildings. "Sec. 2. Be it further ordained, That whenever said company or its assigns shall find it necessary to remove said building it shall be rebuilt on said lots so selected and as prescribed in said original ordinance. "Sec. 3. Be it further ordained, That in tain city officers in the summer of 1882 to terminus on the west bank of the river, the[327] On the 15th of April, 1884, the city council adopted an ordinance, No 685, council series, as follows: "An Ordinance Repealing certain Sections of the Ordinance No. 6938, A. S., Granting Privileges to the New Orleans Pacific Railway Company. "Be it ordained, That § two (2) of the ordinance No. 6938, A. S., passed March 1881, granting to the New Orleans Pacific Railway Company a lease of the Upper City Park batture property, be, and the same is, hereby repealed and revoked." June 16, 1886, the city council adopted an ordinance, No. 1828, council series, as follows: "An ordinance repealing certain rights granted to the New Orleans Pacific Railway Company under ordinanc 6695, A. S., adoptled November 9, 1880; No 6732, A. S., adopted |