Evening star., 1898-05-13
HOLDING TWO OFFICES.
Question of Issuing Army Commits
sfOns to COngressmen.


sfOns to COngressmen.
A question which has been often dis
cussed, and which Is particularly promi-
nent at the present, is whether a senator or
representative In Congress may hold COM
mission in the army. When the attention
of ex-Deputy Controller Mcmahon of
West Virginia was called to the subject he
said:
Under the Constitution no person can be
a senator or representative in Congress
while holding commission in the army, or
any office. whether that Office be in the
civil or military establishment. Article 1.
section 6, provides, among other things,
that no person holding any office under the
United States shall be member of either
house during his continuance in office.
That puts the question beyond dispute. l
know it has been asserted that General
Garfield was a member of the House and a
major general at the same time, and that
his case is a precedent. Garfield was elect
ed while in the army, but he resigned his
commission when he took his seat. There
was no constitutional impediment to his
election; there was to his continuance in
office while representative.
Frank Blair's case is not a precedent
He did not serve in both capacities stimuli
taneously. General Rosecrans held two
other as brigadier general on the retired
list, but they were what is called COM
patible offices. The Supreme Court had
settled that in the Converse case. While
no special legislation was necessary to en-
able him to do so, Congress, out of an
abundance of caution, provided in the bill
retiring him that all laws and parts of
laws in conflict herewith are suspended for
this purpose only Nor is General Sickles
case precedent, for the fact was and so
was the law, that Sickles was constitution
ally disqualified to sit in the House. When
Mr.. Mansur, who was second controller
at the time, had before him the paymaster
generals question to whether or not
Sickles was entitled to his pay as retired
army officer, l told Mr.. Mansur who spoke
to me about it, that he had nothing to do
with the generals army status. | told him
that was all right, and, although his status
as member of the House was all wrong,
the controller had nothing to do with it,
as each house was the judge of the quail
ficationS of its own members. The conten-
ton of General Sickles was that he did not
mold an Office under the United States, bur
only a rank as Il retired army officer. but
that wouldn't do at all, as the Supreme
Court had conclusively and definitely set
tied the question in the case of United
States agt. Tyler, reported in 105 L. S. Mr.
Justice Miller delivering the opinion, which
was substantially that retired army Off
was an officer of the United States and
therefore held an office under the United
States.
Il also suggested to the controller that
no accounting OHCer could stop the pay
an officer SO long as he was borne upon the
rolls of the army, and hadn't forfeited it in
accordance with law Attorney General
Hoar advised Secretary of War Rawlins.
in 1863; that the only issue was General
Sickles eligibility to a seat in the House
of Representatives, and with that the
Treasury Department had no more concern
than it had with the election of a presiding
officer, and any attempt to attack Sickles
collaterally would be clearly a manifest as
sumption of jurisdiction which did not ex-
ist Mansur reached the same conclusion,
only in different and roundabout way
II know that Representative Mcdonald of
Maryland is also holding an office as a re-
tired army officer, but that is because no
one has raised the point Of his eligibility.
Mr.. Blair Lee undoubtedly might have done
so, but, as l understood, he, very generous
ly, held that as Mcdonald had received
more votes than he did he would not con-
test his seat on any ground of constitution
al ineligibility.
'It has been said that General Baker sat
in the Senate. and that General Gilbert
Marston was in the House while holding
commissions in the army. That did not do
away with the constitutional impediment.
They did so, presumably, because no one
raised the point. In my judgment, the only
question is, whether a senator or represen-
tative who accepts an army commission
does not, ipSo facto, vacate his place in
Congress. Mind you, it is not a question of
a man holding two offices. A senator or
a representative Is not an officer in the con-
stitutional meaning of the term In the
Blount Impeachment case before the Sem
ate in 1893, it was held by that body
that senator was not a civil officer
within the purview of the Constitu-
ton: and Mr.. Justice Story has SO
held. But it is, can person holding any |
Office be member of either house during
hIs continuance in said office? The answer
must be that he cannot. Neither house
can qualify man who is disqualified by |
the express terms of the Constitution; and
If, in the past. men have sat in either |
house while holding army or civil commits
sions, their cases are bad precedents
That's all there is about it."