Statement of the Case.

"SEC. 11. And be it further enacted, That the general of the army and commanding officers of the several military departments of the army shall, as soon as practicable after the passage of this act, forward to the Secretary of War a list of officers serving in their respective commands deemed by them unfit for the proper discharge of their duties from any cause except injuries incurred or disease contracted in the line of their duty, setting forth specifically in each case the cause of such unfitness. The Secretary of War is hereby authorized and directed to constitute a board to consist of one major general, one brigadier general and three colonels, three of the said officers to be selected from among those appointed to the regular army on account of distinguished services in the volunteer force during the late war, and on recommendation of such board, the President shall muster out of the service any of the said officers so reported, with one year's pay; but such musterout shall not be ordered without allowing such officer a hearing before such board to show cause against it.

"SEC. 12. And be it further enacted, That the President is hereby authorized to transfer officers from the regiments of cavalry, artillery and infantry to the list of supernumeraries; and all vacancies now existing, or which may occur prior to the first day of January next, in the cavalry, artillery, or infantry, by reason of transfer, or from other causes, shall be filled in due proportion by the supernumerary officers, having reference to rank, seniority and fitness, as provided in existing law regulating promotions in the army. And if any supernumerary officers shall remain after the first day of January next they shall be honorably mustered out of the service with one year's pay and allowances: Provided, That vacancies now existing in the grade of second lieutenants, or which may occur prior to said date, may be filled by the assignment of supernumerary first lieutenants, or officers of higher grades, who, when so assigned shall rank as second Heutenants, providing [provided] such officer shall prefer to be assigned, instead of being mustered out under the provisions of this section; and officers so assigned shall take rank from the date of their original entry into the service: And provided further,

Statement of the Case.

That no chaplain be appointed to posts or regiments until those on waiting orders are assigned."

It appears from the findings that on October 27, 1870, the claimant, who was on active duty at Fort Bidwell. California, was reported by the Department Commander, Lieutenant Colonel George Crook, as unfit for the proper discharge of his duties from other causes than injuries incurred or disease contracted in the line of his duties. His name was submitted to the board organized in pursuance of the 11th section quoted supra. On the 17th of November the board requested that he, with others named, be given a hearing, as required by that section. On November 19th the Adjutant General informed the board that the stations of these officers were so remote that it was impossible for it to consider their cases, and that the Secretary of War had directed that they be not ordered to appear. In compliance with this order, on November 22, the papers in these cases were returned to the Secretary of War. In other words, the proceedings initiated in section 11 were abandoned. No inquiry was ever made as to the alleged unfitness for the proper discharge of his duties from causes other than injuries incurred or disease contracted in the line of duty. It appears further, that on January 2, 1871, January 1st being Sunday, an order was issued by the Secretary of War, which, so far as it affects this claimant, reads as follows:

(General Orders, No. 1.)

WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE.

WASHINGTON, January 2, 1871.

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 Section 12 of the Act Approved July 15, 1870.

Argument for Appellant.

II. Transfers and Assignments to Fill Vacancies to the Present Date.

First Lieutenant Max Wessendorff, unassigned, to the First Cavalry, vice Street, transferred to the list of supernumeraries.

III. Unassigned Officers whose Commissions have expired under Section 12 of the Act of Congress approved July 15, 1870, and who are Honorably Mustered out of the Service.

Subsequently, on September 18, 1871, he received the year's pay provided for in section 12, and still later, on the 18th of February, 1881, he was paid the sum of $117.95 upon treasury settlement, on account of some errors in the previous payment. Mr. J. M. Vale for appellant.

I. Being reported as unfit for the proper discharge of his duty for cause other than injuries incurred or disease contracted in the line of his duty, by the commanding officer of a military department and by the general of the army, on the 10th of November, 1870, under the provisions of section 11 of the act of July 15, 1870, 16 Stat. 315, appellant, then an officer in the military service of the United States, could not be legally mustered out of the service under the said act of July 15, 1870, without being allowed a hearing before the board provided for in that section, to show cause against such muster out. 13 Opinions Attys. Gen. 353; 13 Opinions Attys. Gen. 412; United States v. Freeman, 3 How. 556, 565.

II. Section 12 of that act authorized the President to transfer officers from active duty to the list of supernumeraries, and, prior to January 1, 1871, to fill vacancies on the active list by

Opinion of the Court.

supernumerary officers. This authority expired January 1, 1871, and after that time no disposition could legally be made of a supernumerary officer, except to honorably muster him out of the service, and pay him in accordance with the provisions of the act. The list ceased on that date, except as a designa ́tion for honorable muster out, and no transfers could legally be made to it on the 2d day of January, 1871. Brown v. Barry, 3 Dall. 365; Minor v. Mechanics' Bank, 1 Pet. 46; Thornley v. United States, 113 U. S. 310.

III. The acceptance or non-acceptance by appellant of the discharge and year's pay, provided for officers discharged under the act of July 15, 1870, with or without protest, did not alter his legal status, if notified of his discharge as a supernumerary officer under the erroneous construction of the law. Brant v. Virginia Coal & Iron Co., 93 U. S. 326; Ketchum v. Duncan, 96 U. S. 659; Morgan v. Railroad Co., 96 U. S. 716; United States v. Redgrave, 116 U. S. 474.

IV. The nomination of Wainwright by the President vice Wessendorff promoted, and his confirmation by the Senate, did not operate to supersede appellant, who was a stranger to the record of nomination and confirmation, and was not a nomination by the President of Wainwright and his confirmation by the Senate, to the office held by appellant, Harlow L. Street. Official Army Register 1871; Blake v. United States, 103 U. S. 227; Army Regulations 1863, paragraph 20; Lapeyre v. United States, 17 Wall. 191; Runkle v. United States, 122 U. S. 543.

Mr. Assistant Attorney General Cotton and Mr. F. P. Dewees for appellees.

MR. JUSTICE BREWER, -after stating the case as above, delivered the opinion of the court.

The principal contention of the appellant is that, proceedings having been commenced under section 11, they should have been carried to a close, and that he could be mustered out of the service only upon an adjudication by that board of

Opinion of the Court.

unfitness. But this view cannot be sustained. It arises from a misconception of the scope of the two sections. The first aims to eliminate from the army those officers who are unfit for the discharge of their duties, and whose unfitness springs from no cause of meritorious claim upon the consideration of the government; while the other is a grant of general power to the President to reduce the number of officers by selecting the best and mustering out the residue. It is comprehensive in its scope, and not at all dependent upon the failure to accomplish the requisite reduction through proceedings under section 11. It is in no manner subordinated to or dependent upon that section, and grants a power which can be exercised irrespective of all other proceedings.

The appellant had no vested right to an adjudication upon the matter reported against him. In the absence of express lumitation, the government may always withdraw charges which it has made. There is nothing in the words of either section, nothing in the scope and purpose of their provisions, or in any general rule of law, which prevented the government from abandoning the proceedings initiated under section 11, and proceeding to muster out the appellant under section 12.

The other proposition of the appellant is that the authority given by section 12 was not strictly pursued. While it is conceded that the President might add to or take from the list of supernumerary officers, it is urged that he could muster out only those who were supernumerary officers at the close of the first day of January, 1879, the language being: "And if any supernumerary officers shall remain after the first day of January next they shall be honorably mustered out," etc., whereas, by the order actually made, he was transferred to the supernumerary list only on the second day of January. Concede the irregularity, and it is not such as vitiates the order. The purpose of the act is obvious. The direction of Congress was clear and distinct, and it would be strange if any executive officer could, by irregularity in executing the mandate of Congress, thwart this purpose. The matter of time was not vital. The purpose was reduction, and a reduction to be accomplished by selecting the best and mustering out the poorer element;

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