Byrne v. United States

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 *255under 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.