
    MASON CARTER v. THE UNITED STATES.
    [No. 14582.
    Decided January 24, 1887.]
    
      On the Proofs.
    
    The Act 27th February, 1877 (19 Sfcat. L., 240), provides that officers “assigned to duty which requires them to be mounted ” shall receive the pay of cavalry officers. The commanding officer of a military department reports that he has captured enough war ponies to mount a regiment and requests authority to do so, which is given hy the Secretary of War. The regiment is thus mounted, including the officers. On these facts the court holds (17 C. Cls. R., 132) that such officers were not “assigned to duty which requires them to be mounted ” within the meaning of the act. There being no appeal in that-case, the court is now ashed to review its decision.
    The court, although differently constituted, finds no reason to depart from the law as announced in the case of Forbes (17 C. Cls. R., 132).
    
      The Reporters' statement of the case:
    The following are the facts found by the court:
    “ This case having been heard before the Court of Claims, the court, upon the'evidence, finds the facts as found in the case of Forbes v. The United States, reported in 17 Court of Claims, page 132.”
    
      Mr. R. J3. Warden for the claimant:
    Can it be held that the Secretary of War, or any one else, can order a thing done, the doing of which creates an obligation, and by his intention defeat the obligation ? Does not, as the Supreme.Court says it does in the Williamson Case, the position govern the pay, and not the mode by which the position was acquired ? How can so uncertain a guide as the intention at the time of making an order, carrying with it certain specified obligations, be regarded in giving operation to that order ? The intention may have been to defeat absolutely the end provided for by law, and the legal effect of a valid order cannot be altered by making conditions that that effect shall not follow. The effect is a certain specified consequence upon the issue and performance of the order, and cannot be altered or abrogated by conditions made with those to whom the order is issued.
    
      The court has put considerable stress upon the statement of General Terry. But how can General Terry waive the rights of his brother officers ? By what authority did General Terry become vested with the very remarkable power to invalidate an enactment of Congress ? The Supreme Court may declare an act unconstitutional, but General Terry may make one inoperative ! The question is not what Colonel Miles or General Terry or the Secretary of War thought would be the effect of this action, but what the law declares it.
    That these officers were ordered to mount upon authority given, and that they were mounted, is a fact; and that fact entitles them to what they here claim, namely, that “ actually serving with companies of infantry mounted by authority of the War Department, and not in excess of the legal organization of infantry,” they are entitled to mounted pay while so serving.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The counsel for the claimant, in the statement of his cause of action, concedes that this case is similar to the case of Forbes v. The United States (17 C. Cls. R., 132); and that “ it is here made necessary, with a view to a recovery in this case, to show that the court erred in the Forbes Case.”

That case was not taken to the Supreme Court, the sum involved not being sufficient in amount to authorize an appeal to the Supreme Court. The doctrine of stare deeieis, as has been said by a distinguished writer, “is not always to-be relied upon.” Courts frequently find it necessary to overrule cases in order to conform to principle, and are not loth to do so, unless, upon the faith of former decisions, rights have accrued and property has become vested on the strength of judicial finding.

As but one decision, and that not upon a question of property, so as to become a rule of ownership, is asked to be overruled, the court is left free to examine its former adjudication, and announce the result of subsequent investigation and renewed thought.

Three members of the court, as at present organized, participated in the decision which we are now asked to reconsider- and change, and by the assistance of additional judges the case of Forbes has been examined in the light of the very able brief filed by the counsel for the claimant; but we find no reason to depart from the law as announced by this court in the opinion of Chief-Justice Drake, and therefore we are compelled to dismiss the petition of the claimant.

Nott, J., did not sit in this case and took no part in the decision.  