Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-01-03
MAJ. THROCKMORTON'S CASE
Gossip Excited by His Appointment to Q
Place in New York.

The Question of Army Omcers Hold
ing Ohice-The Case of Gen. sicl<les
| and Others Like IL.
| Major Charles B. Throckmorton, second
United States artillery. is the subject of
considerable gossip in army circles just
at present. 1t is caused by the news
OF his appointment as assistant superin-
tendent Of street cleaning in New York
city, at a salary of s., 500 a year. About
a year ago Major Throckmorton was court
martialed under charges of drawing checks
on banks where he had no funds and with
duplicating his pay accounts. The verdict
as TO several of the charges was guilty"
and he was sentenced to be dismissed the
service President Harrison approved the
findings of the court, but, in consideration
or the officers gallant services during the
war, mitigated the sentence to five years
suspension from rank and duty on half
pay.
| Major Throckmorton was appointed to
his present place by Mr. W. S. Andrews.
street sweeping commissioner OF New York
city.
In q letter to Major Throckmorton noti-
flying him of his appointment, Commits
sioner Andrews said: I have received let
tiers recommending your appointment to a
position in this department and commend
ing you in the strongest terms as q man
of the highest integrity and exceptional
ability, from Mr.. Frederic II. Coudert, Gen
Benjamin F. Tracy. Mr.. Coils p. Hunting
ton, ex-Seeretary OF War Stephen B. FL
kins and United States Senator Proctor.
nave also letter of Endorsement sent you
by Gen. Thomas l.. James, and / know
now highly you were esteemed by the late
Cen sherman, who was your warm per-
sonar friend, as he was mine. In his let
ter commencing you, MIR. Coudert SAYS
II You could place him In any position
where energy, courage. and the power to
enforce discipline are required. he vould
answer your best expectations and prove
ment."
Not Omcially Known Here.
Inquiry at the War Department discloses
the fact that none Of the officials has any
omciai knowledge Of Maj. Throckmorton's
civil appointment in New York city. Not.
withstanding his suspension from active
duty, Maj. Throckmorton is still an Office,
Of the army on the active list and Is sub.
ject to the rules and regulations governing
the service, the same as any other ONCE,
whose name is in the Army Register. One
or the statutes governing the army provides
that any officer thereof who accepts another
once. national, state or municipal, thereb,
sacates MS commission in the army. As
construed by the law officers of the army
this provision applies to public Offices
and does not prohibit an officer under sus.
ment.
Although the officials Of the War Depart.
ment do not care TO publicly discuss tht
| case Of Maj. Throckmorton, they do no,
hesitate to say that he cannot legally &C.
/ ~
commission In the army, and this, entirel,
without regard to whether or not his presenl
action has the sanction of the authorities
AS already indicated the matter has not
| been presented to the War Department In
any shape.
The Meaning of s.Omce.v
The only question involved in this case ID
whether or not the position of assistan,
superintendent Of the street sweeping de.
partment Of New York city is an office
within the meaning Of the law. II it is, and
Maj. Throckmorton accepts IL, II is claimed
he forfeits his commission In the army II
1t is not, he can accept IL with impunity
and his status remains unchanged, up &c
the expiration of his term of SUSPENSE
when he will be called upon to resume his
| regular military duties. In that event ne
would not be in a position to render service
| outside of the army.
There are no presidents for guidance in a
case like this and there is a great difference
| OF opinion as to the legal meaning of an
office" The strict constructionists Contend
| that any position which is specifically pro.
Nioed Tor, by name, by national. state OF
city legislative assemblies is an 'orf1ce -
Others, however, go farther and assert thai
any place, with a fixed salary, regardless OF
the manner of appointment like a clerk
| SHIP for instance. is TO all legal intents and
purposes an office" Whether the place &c
which Maj Throckmorton has been appoint.
ed by subordinate ofrcial of the city OF
New York comes within either Of these two
definitions remains to be seen.
Gen. Sickles' Case.
| The present case recalls the controversy
over the case of Gen. Sickles, ONLY now.
ever, as involving the question OF whether
a retired army officer holds an office with.
In the meaning of the law. Gen Sickles is
a member Of Congress and a major general
on the retired list OF the army. the com.
bined emoluments of which are Slo625 q
year. The accounting officers of the treas.
ury are now struggling with his case. The
Constitution provides that a Representative
IN Congress shall not hold any other ONCE
| unoer the government. 1t also proy-f les
however. that the Senate and House shal
| respectively determine the eligibility of its
members. As Gen. Sickles was sworn I'm
ana gwen his seat in the House withou,
question. II is argued that the House has
passed finally on the question of his eliyibili.
ty as a member OF that body Thus. while 4,
appears that the accounting officers have nc
discretion in that phase OF the question
there Is still serious doubt in their minds
as TO Gen. Sickles' right, while receiving
pay as member of Congress. to receive pay
as an officer on the retired list of the army
| No Decision Rendered
| The law officers Of the War Department
considered this question without result, and
1t was referred to the Attorney General for
an opinion. That officer gave an opinion.
but II was remarkably non-committal The
Attorney General simply satisfies himself
by quoting the opinion of the court of an.
peals Of the state of New York, in case OF
Gen. James c. Duane. when the legality of
his appointment as aqueduct commissioner
was questioned; also an opinion of the
| United States Supreme Court in the case
or Gen. Adam Badeau, whose right to con-
tinue in his place on the retired list of the
army, after accepting the appointment OF
consul general to Cuba, and his right To
draw the salaries of both positions without
a violation OF the statutes was I'm question;
also quoting the case of Gen. Rosecrans,
who occupied the position of register Of the
treasury. and at the same time continued
TO draw his pay a retired major general
of the army. The Attorney General ex-
presses no positive opinion as to the right
Of Gen. Sickles to continue to hold both
! hoth los