
    EDWARD BYRNE v. THE UNITED STATES.
    [No. 16313.
    Decided March 11, 1889.]
    
      On the Proofs.
    
    This is identical with the preceding case, with the exception of these facts: that the claimant’s successor still occupies his former position; that the claimant positively declined to he transferred; that the order effected the transfer of an infantry officer to a cavalry regiment.
    I. The power vested in the President by the Act 1870 to transfer officers to the list of supernumeraries could be exercised without the consent of the officer.
    II. The act authorized the President to make any transfer that he deemed best, and in the exercise of that power to transfer an infantry officer to a cavalry regiment, irrespective of the Army regulations.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant entered the volunteer service of the United States as a second lieutenant August 1,1861, and continued in said service during the war of the rebellion and until the 31st ‘ day of May, 1866, when he was mustered out of said service as lieutenant-colonel of the Eighteenth New York Cavalry.
    II. He Was appointed a captain in the Tenth United States Cavalry November 30,1866, and served as such till January 24, 1871, or some day subsequent thereto, when he was relieved from command of his troops in the field by S. O. No. 18, Headquarters Post Fort Sill, dated January 24, 1871.
    III. In compliance with General Order No. 92, Headquarters of the Army, dated A. G. O., Washington, D. C., July 22,1870, and par. 4, General Order 96, War Department, A. G. O., ' Washington, D. C., July 26, 1870, claimant was reported as “ unfit for the proper discharge of his duties from causes other than injuries incurred or disease contracted in the line of his duty” by Maj. Gen. John Pope, commanding the Department of the Missouri, in a letter addressed to the Adjutant-General of the Army, dated Fort Leavenworth, Kans., October 20, 1870; and on October 28,1870, claimant’s name was submitted to the Secretary of War by the General of the Army as one of a “ list of officers whose names are submitted for the action of the President or board of officers under the act of Congress approved July 15, 1870.” On said list so submitted, opposite the name “ Edward Byrne, Captain Tenth Cavalry,” and in the column headed “ Recommendation of the General,” was written “ Supernumerary list,” and on another list, headed “For transfer to supernumerary list as made from list submitted in connection with the board of which General Hancock is president,” opposite the name of “ Edwin Byrne, Captain Tenth Cavalry,” and in the column headed “ Recommendation by the General,” are the words “ To be transferred to the list of supernumeraries,” under which is written, in parenthesis, the words “ By order of the Secretary of War.”
    IV. The charges of unfitness for the discharge of his official duties, made as above against the claimant, were never considered by the board of officers appointed under provisions of an act of Congress approved July 15, 1870, for investigations of such allegations of unfitness, nor was he ever accorded a ’hearing before said board known as the “ Hancock Board,” to show cause against them, but the final action thereon was the direction that he be transferred to the list of supernumeraries, as hereinafter set forth.
    Y. The claimant had declined on August 19,1870, an opportunity tendered him to be voluntarily transferred to the list of supernumeraries.
    YI. The claimant was never, prior to January 1, 1.871, on the list of supernumerary officers, but from the date of his original appointment as captain in the Tenth Cavalry, D. S. Army, was on continuous active duty in the Army till relieved from the command of his troops in the field on or subsequent to January 24,1871.
    YII. On January 2, 1871, an order, known as General Order No. 1, dated War Department, A. G. U., Washington, D. C., January 2,1871, was issued over the signature of E. D. Townsend, Adjutant-General, by order of the Secretary of War, of which the following is an extract of so much thereof as relates to the claimant’s transfer to the list of the supernumeraries and muster out of service as such, and of the assignment of Captain Yiele in his stead:
    “ By direction of the President the following officers of the Army are transferred, assigned, or mustered out of the service, to take effect from the 1st instant:
    “ I. Transfers to the list of supernumeraries under sec. 12 of the act approved July 15,1870:
    *******
    
      u Captain Edward Byrne, 10th Cavalry.
    * * * * * * *
    “ IT. Transfers and assignments to fill vacancies to the present date:
    
      11 Assignments-. — Cavalry.
    # * * * * # # "
    • “ Captain Chas. D. Yiele, unassigned, to the 10th Cavalry, vice Byrne, transferred to the list of supernumeraries.
    
      “ III. Unassigned officers whose commissions have expired under sec. 12 of the act of Congress approved July 15, 1870, and who are honorably mustered out of service:
    *******
    “ Captain Edward Byrne.”
    *******
    The claimant applied for and received one year’s pay and allowances without any protest on his part.
    YIII. The claimant has never been removed from his office as captain Tenth Cavalry by the nomination by the President and confirmation by the Senate of another in his stead. No commission as a captain in the Tenth Cavalry ever issued to Captain Yiele under his assignment vice Byrne, by General Order No. 1, January 2, 1871.
    IX. That claimant wrote a letter to the Adjutant-General, dated October 1, 1888, giving his post-office address, and stating that he was ready to discharge the duties of his office. The Adjutant-General has not accepted nor in any way made acknowledgment of said tender. It does not appear that the-claimant has at anytime demanded of the War Department or from the President that General Order No. 1, of January 2, 1871 (above referred to), should be set aside as irregular or void; nor subsequent to his muster out, and prior to said letter of October 1, 1888, does it appear that he has claimed to be captain of Tenth Cavalry.
    X. There appears among the files of the War Department the following order; but it does not appear that it was ever issued or promulgated, and the names of three officers appear upon it who were not included in the order of January 2,1871, set forth in the seventh finding, nor were such officers ever in fact transferred:
    [G-eneral Orders ÍTo. 000.]
    “War Department, “Adjutant-General’s Office,
    “ Washington, December 000, 1870.
    “ 1. By direction of the President the following named officers are transferred to the list of supernumeraries, under section 12, act approved July 15, 1870:
    # * # _# * * *
    
    “ Captain Edward Byrne, 10th Calvary.
    *******
    “ War Department, Dec’r31st, 1870:
    “Approved:
    “ Wm. W. Belknap,
    “ Sec’y of War.
    
    
      Mr. W. J. Moberly for the claimant.
    
      Mr.F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Nott, J.,

delivered the opinion of the court:

This case is identical with the preceding case of Lieutenant Street, with the exception of two or three distinctive facts that, have been earnestly pressed upon the attention of the court by the counsel for the claimant.

The first of these is the fact that Captain Viele, the officer who succeeded the claimant, still occupies the position to which he was transferred by the President, that is to say, the office which the claimant asserts himself to be legally entitled to, and that the appointing power of the President and Senate has-not intervened to remove the one by appointing the other. The second is that the claimant positively declined to be transferred; and it is insisted that the transfer of an officer under the statute was cumulative to tbe provision of the Army Regulations, 1863 (par. 30, p. 12), and could only have been with his consent. The third is that the order in this case effected the transfer of an infantry officer to a cavalry regiment,, contrary to the provisions of the Army Regulations, 1863, Art. VI, p. 12, which forbid such changes, except upon the mutual application of two officers who may wish to exchange, and without prejudice to the rank of any other officer.

As to the first and second of these distinctive facts, they are in effect answered by the construction given to the statute in the preceding decision, which may be regarded as also being the opinion in this case. As to the third, it is not clear to the court that the Army regulations referred to would be binding upon the President in a case where the interests of the service require such a transfer. But be that as it may, the court is here of the opinion that the Act 1870 authorized the President to make any transfer to the list of supernumeraries which he deemed it best to make, and consequently that the transfer of the claimant was operative and brought him within the other provision requiring his muster out.

The judgment of the court is that the petition be dismissed.  