                                No 12255
            I N THE SUPREME COURT OF THE STATE O M N A A
                                                F OTN
                                1972




CHARLES H MAHONEY,
                                           Relator,


FRANK MURRAY, S e c r e t a r y of S t a t e , S t a t e o f Montana,
                                           Respondent.

ORIGINAL PROCEEDING:
          For R e l a t o r :
                  P h i l i p W S t r o p e , argued, Helena, Montana.
                  Robert L Woodahl, A t t o r n e y General, Helena, Montana.
                  John C Connor, A s s i s t a n t A t t o r n e y General, Helena,
                  Montana.
                  Lawrence D Huss, argued, A s s i s t a n t A t t o r n e y General,
                  Helena, Montana.
          For Respondent :
                  John Risken, argued, Helena, Montana.
Amicus Curiae:
                  Wesley Wertz, argued, Helena, Montana.




                                              Submitted:      A p r i l 7 , 1972

                                                 Decided: APR     2 11
                                                                     m

F i l e d : ApR   2 11 %
                      9
Mr. J u s t i c e Wesley Castles delivered the Opinion of the Court.

      This i s an original proceeding seeking a w r i t of mandamus directing
the Secretary of S t a t e t o receive and f i l e a declaration of nomination f o r
public o f f i c e , t h a t of S t a t e Treasurer, by the r e l a t o r .   On ex parte appli-
cation, t h i s Court issued i t s order of April 3, 1972, accepting j u r i s d i c t i o n ,
ordering the Attorney General t o be joined as a r e l a t o r , and s e t t i n g the
matter f o r hearing on April 7, 1972.
      Relator Charles H. Mahoney i s a resident c i t i z e n of Jefferson County,
Montana, and a qualified e l e c t o r .        Relator was elected on November 2, 1971,
from D i s t r i c t 12, comprising Jefferson, Broadwater and Lewis & Clark counties,
as a member of the Constitutional Convention.                   Relator was elected as an
Independent candidate.
      The Constitutional Convention was called by the Forty-second Legisla-
t i v e Assembly, Chapter 296, Laws of Montana 1971, as amended by Chapter 1
of the F i r s t Extraordinary Session of the Forty-second Legislative Assembly.
The amendments came about as a r e s u l t of the case "The Forty-second Legis-
l a t i v e Assembly of the S t a t e of Montana, and Frank Murray, Secretary of
S t a t e of the S t a t e of Montana v. Joseph L. Lennon, Clerk and Recorder of
Cascade County, Montana", reported i n 156 Mont. 416, 481 P.2d 330, and here-
i n a f t e r referred t o as the Lennon case.
      The Convention assembled, and i t s members were sworn with Relator
Mahoney a member, in an organizational meeting on November 29, 1971.                       There-
a f t e r , the Convention assembled again in plenary session on January 1 7 , 1972.
I t continued t o meet until noon on March 24, 1972, when, a f t e r motion made
and c a r r i e d , i t "adjourned sine die".
      Respondent Frank Murray i s Secretary of S t a t e whose duties a r e s e t f o r t h
i n Art. VII, Sec. 1 , of the Montana Constitution, and in section;82-2201, e t .
seq., R.C.M.     1947.     These duties include the f i l i n g of declarations of nomi-
nation f o r public o f f i c e .   Respondent Frank Murray i s the same public o f f i c e r
who as a party sought declaratory judgment in the Lennon case.
                                              - 2 -
           Robert L. Woodahl, Attorney General of Montana, because of the
constitutional issues involved, was ordered joined as a re1 a t o r .                          Attorney
-General Woodahl , on January 28, 1972, had, i n response t o a request by
the President of the Convention, issued an opinion appearing in Volume No.
34 of Attorney General ' s Opinions as Opinion No. 34, in regard t o the el i -
g i b i l i t y of members of the Convention t o become p o l i t i c a l candidates in the
year 1972.       Briefly, and we acknowledge before any f a c t s concerning adjourn-
ment, election dates f o r Convention proposals, completion of work, or anything
e l s e , the opinion s t a t e d t h a t members could, a f t e r adjournment s i n e d i e , serve
i n any public o f f i c e .     Because t h a t opinion was rendered, i t appeared the
Attorney General should a l s o be a r e l a t o r .
           Five days a f t e r the previously mentioned "adjournment s i n e d i e " , Re-
l a t o r Mahoney attempted t o f i l e his declaration of nomination and f i l i n g f e e
f o r the o f f i c e of S t a t e Treasurer.      The Secretary of S t a t e refused t o accept
the f i l i n g and advised Relator Mahoney t h a t his f i l i n g was refused as he was
a duly elected member or delegate of the Constitutional Convention, "                                ***
since the Montana Supreme Court i n [the Lennon case] appears t o hold t h a t a
Member of the Constitutional Convention i s a public o f f i c e r coming within the
Constitutional provisions prohibiting publ i c o f f i c e r s from simultaneously hold-
ing more than one publ i c o f f i c e . "
           Fol 1owing t h i s occurrence, the present action was commenced by Re1 a t o r
Mahoney.
           This Court accepted original j u r i s d i c t i o n , a t l e a s t in p a r t , due
t o the f a c t t h a t the f i l i n g date f o r candidates f o r nomination f o r election
t o public o f f i c e expires on April 27, 1972, and in fairness t o a l l , time i s
short.
           Respondent Murray appeared by answer.                   The answer s e t up three de-
fenses, e s s e n t i a l l y ( 1 ) t h a t there was no claim f o r r e l i e f s t a t e d ; ( 2 ) t h a t
the purported "adjournment sine die" was not an adjournment i n the sense of
a "termination" in t h a t the Convention adopted i t s Resolution No. 14 which
perpetuates t h e Convention f o r an i n d e f i n i t e t i m e i n t h e f u t u r e by c r e a t i n g

a committee w i t h f u l l a u t h o r i t y t o manage and conclude a l l o f t h e Convention's

procedural, a d m i n i s t r a t i v e , and v o t e r education a f f a i r s , and t o spend funds

o f t h e Convention whether a p p r o p r i a t e d by t h e 1e g i s l ature, r e c e i v e d from

f e d e r a l funds o r otherwise; and ( 3 ) t h a t R e l a t o r Mahoney i s p r o h i b i t e d from

h o l d i n g two c i v i l o f f i c e s by A r t . V, Sec. 7, o f t h e Montana C o n s t i t u t i o n and

t h i s C o u r t ' s d e c i s i o n i n Lennon.

            Oral argument was had w i t h argument by counsel f o r R e l a t o r Mahoney,

Re1a t o r Woodahl , Respondent Murray and by Amicus Curiae Wesl ey W. Wertz.

            The p e t i t i o n o f R e l a t o r Mahoney seeks a w r i t o f mandamus and a reason-

a b l e a t t o r n e y fee.    The answer and b r i e f o f Respondent Murray would challenge

t h e remedy o f mandamus as being an improper remedy i n any event.                                     W need n o t
                                                                                                          e

dwell here on t h e appropriateness o f t h e remedy.                          Whether mandamus would be an

a v a i l a b l e and proper remedy would depend on whether R e l a t o r Mahoney i s qua1 i-

f i e d t o f i l e f o r p u b l i c o f f i c e , n o t w i t h s t a n d i n g t h e r e f u s a l o f Respondent

Murray.       The b a s i c question, t h e r e f o r e , i s whether a t t h e t i m e o f a t t e m p t i n g

t o f i l e f o r o f f i c e R e l a t o r Mahoney was s t i l l a d e l e g a t e and one who does

p r e s e n t l y " h o l d any p u b l i c o f f i c e " w i t h i n t h e meaning o f t h i s C o u r t ' s o p i n i o n

i n Lennon.        P u t t i n g t h e f i r s t p a r t o f t h e b a s i c q u e s t i o n another way, does a

delegate have a term o f o f f i c e ?

            H e r e i n a f t e r a l l references t o A r t i c l e s s h a l l be t o t h e C o n s t i t u t i o n

o f Montana.        Chapter 1 o f t h e F i r s t E x t r a o r d i n a r y Session, Vol. 11, Laws o f

Montana 1971, amending Chapter 296, Laws o f Montana 1971, s h a l l be r e f e r r e d

t o h e r e i n as t h e Enabling Act.

            A r t . X I X , Sec. 8, provides:

            "The l e g i s l a t i v e assembly may a t any time, by a vote
            o f t w o - t h i r d s o f t h e members e l e c t e d t o each house,
            submit t o t h e e l e c t o r s o f t h e s t a t e t h e q u e s t i o n whether
            t h e r e s h a l l be a convention t o r e v i s e , a1 t e r , o r amend
            t h i s c o n s t i t u t i o n ; and i f a m a j o r i t y o f those v o t i n g on
            t h e question s h a l l d e c l a r e i n f a v o r o f such convention,
            t h e l e g i s l a t i v e assembly s h a l l a t i t s n e x t session pro-
            v i d e f o r t h e c a l l i n g t h e r e o f . The number o f members o f
            t h e convention s h a l l be t h e same as t h a t o f t h e house
            o f r e p r e s e n t a t i v e s , and they s h a l l be e l e c t e d i n t h e
            same manner, a t t h e same places, and i n t h e same d i s t r i c t s .
         The l e g i s l a t i v e assembly shall in the a c t calling the
         convention designate the day, hour and place of i t s
         meeting, f i x the pay of i t s members and o f f i c e r s , and
         provide for the payment of the same, together with the
         necessary expenses of the convention. Before proceed-
         ing the members shall take an oath to support the
         constitution of the United States and of the s t a t e of
         Montana, and to f a i t h f u l l y discharge t h e i r duties as
         members of the convention. The qualifications of mem-
         bers shall be the same as of the members of the senate,
         and vacancies occurring shall be f i l l e d in the manner
         provided f o r f i l l ing vacancies in the l e g i s l a t i v e
         assembly. Said convention shall meet within three
         months a f t e r such election and prepare such revisions,
         a1 terations or amendments to the constitution as may
         be deemed necessary, which shall be submitted to the
         electors f o r t h e i r r a t i f i c a t i o n or rejection a t an
         election appointed by the convention f o r t h a t purpose,
         not less than two nor more than six months a f t e r the
         adjournment thereof; and unless so submitted and ap-
         proved by a majority of the electors voting a t the
         election, no such revision, a1 teration or amendment
         shall take e f f e c t . "
         Art. V, Sec. 7 provides:
         "No senator or representative s h a l l , during the term
         f o r which he shall have been elected, be appointed to
         any c i v i l office under the s t a t e ; and no member of
         congress, or other person holding an office (except
         notary publ i c , or in the mi 1i t i a ) under the United
         States or t h i s s t a t e , shall be a member of e i t h e r
         house during his continuance in office."
         Art. VII, Sec. 4, referring to s t a t e offices of governor, secretary
of s t a t e , attorney general , treasurer, audi t o r , superi ntendent of publ i c
instruction and lieutenant-governor, s t a t e s in part:
         " * * * N o f f i c e r mentioned in t h i s section shall
                       o
         be e l i g i b l e t o , or hold any other public o f f i c e , except
         member of the s t a t e board af educatIion during his term
         of office."
         Art. VIII, Sec. 35, prohibits justices of the supreme court and judges
from holding other public office while he remains in office.
         In the Enabling Act i t i s provided, i n Section 2 , t h a t the number of
delegates shall be the same as provided f o r the election of members of the
house of representatives and Section 3 provides t h a t the qua1 i f i c a t i o n s of
delegates shall be the same as t h a t of members of the s t a t e senate.
         Section 4(1) s t a t e s :
         "Delegates to the constitutional convention shall be
         elected in the same manner as members of the house
          of representatives       * * *."
          Section 5 requires the constitutional oath of office required by
Art. XIX, Sec. 1. Section 6 provides f o r vacancies to be f i l l e d in the
same manner as for l e g i s l a t i v e vacancies.
          Section 7(6) s t a t e s :
         " I t shall be the duty of the delegate elected to
         assemble in plenary session in the chambers of the house
         of representatives in the s t a t e capitol building i n the
         c i t y of Helena, a t 10:OO a.m. on January 17, 1972.
         The convention, which may recess from time t o time, shall
         then remain in session as long as necessary."            '




         Section 16 refers to pay and expenses as the same as l e g i s l a t o r s
and in subs. (4) refers to "officers and employees of the s t a t e and i t s
political subdivisions who are not prohibited by the Montana Constitution or
Laws of Montana from serving as delegates             **   *.I1



         Section 21 provides for appropriations f o r the biennium ending June
30, 1973. Section 24 provides f o r repeal of the Enabling Act on June 30,


         Relator Mahoney contends that his "term" expired on adjournment sine
die on March 24, 1972.         Respondent Murray contends the term i s f o r two years,
the same as t h a t of a representative, beginning January 17, 1972 and ending
January 17, 1974.       Respondent Murray's position i s essentially correct since
the term continues to run until the repeal of the Enabling Act on June 30,


         Referring now to the Enabling Act, the Legislature's intent seems
clear.   Delegates were elected f o r a term ending on repeal of the a c t ; funds
were provided until repeal of the act; the convention could remain in ses-
sion "as long as necessary" subject to the repealer clause; i t s duties con-
tinued through submission of i t s proposals to the people a t an election to
be held a f t e r "adjournment" within a specified time as specified in Art. XIX,
Sec. 8; i t s members or delegates were to be paid and treated in a l l other
respects in the same manner as l e g i s l a t o r s , particularly as house of represent-
ative members.
In Lennon a t page 422 of 156 Mont. t h i s Court said:
"Directing our attention to the f i r s t issue before us
f o r determination, w find that i t contains two questions
                      e
which we answer as follows:
"Any s t a t e and local officers who are prohibited by the
constitution or laws of Montana from holding more than
one office may not serve as delegates to the constitu-
tional convention. A delegate t o the cons t i tutional
convention i s a ' s t a t e o f f i c e r ' holding a publ i c office
of a civil nature.


"These r e s t r i c t i o n s prevent such officers from holding
any other 'public o f f i c e ' or ' c i v i l o f f i c e ' of the s t a t e ,
these two terms are synonymous. State ex re1 . Barney v.
Hawkins, 7 9 Mont. 506, 257 P. 411. * * *"
This Court went on t o say:
"In our view delegates to a constitutional convention
also ' possess a delegation of a portion of the sovereign
power of government, to be exercised f o r the benefit of
the publ i c ' satisfying requirement ( 2 ) of Barney. Plain-
t i f f s and relators argue that t h i s requirement i s not
s a t i s f i e d , drawing a distinction between officers of the
executive, l e g i s l a t i v e and judicial branches of the s t a t e
government and delegates to a constitutional convention
who act as agents of the people occupying no position in
any recognized branch of s t a t e government. Our attention
has been directed to several cases from other s t a t e s up-
holding such distinction under t h e i r particular s t a t e
history and the particular provisions of t h e i r s t a t e con-
s t i t u t i o n s . These cases are not persuasive as applied to
the present controversy in Montana, being distinguishable
on the basis of such factors as historical considerations
peculiar to such s t a t e , legislative precedent, existing
rather than proposed legislation, inherent .legislative
powers t o call a constitutional convention, different
constitutional provisions, and dissimilar issues present-
ed f o r decision [citing cases] * * *.
" delegate to the constitutional convention exercises
 A
sovereign powers of a l e g i s l a t i v e character of the high-
e s t order. That the final product of such l e g i s l a t i v e
authority i s subject to referendum, renders i t no less an
exercise of sovereign power. The delegation of unlimited
power i s not essential to the exercise of sovereign power.
To draw a distinction between other s t a t e officers and
delegates to a constitutional convention, both of whom
a c t as agents of the people exercising sovereign powers
in t h e i r behalf , i s to deny our basic concept of govern-
ment."
"The purpose of the Montana cons t i t u t i onal r e s t r i c t i o n s
against certain officers serving as delegates to a con-
stitutional convention i s readily apparent. I t i s to
         insure independent consideration by the delegates of the
         provisions of the new constitution, to reduce concentra-
         tion of pol i t i c a l power a t the constitutional convention
         by el iminating as delegates incumbent off ice holders , and
         to foreclose the possibility of such officers creating
         new offices f o r themselves or increasing the salaries or
         compensation of t h e i r own offices. See Kederick v.
         Heintzleman, D. C . , 132 F.Supp. 582, f o r the expression
         of similar principles in prohibiting a s t a t e senator
         from f i l i n g f o r the position of delegate to the Alaskan
         constitutional convention. These considerations cannot
         be given e f f e c t unless a delegate to the constitutional
         convention holds a 'public o f f i c e ' thereby placing h i m
         within the ambi t of constitutional prohibitions.
         "Requirement ( 5 ) of Barney t h a t an office must have some
         permanency and continuity and not be only temporary or
         occasional in order to cbnstitute a ' ~ u b l i c   office-' i s
         s a t i s f i e d in the case of a delegate to the constitutional
         convention. This requirement i s a r e l a t i v e matter and
         must be interpreted in the l i g h t of the purposes f o r
         which the position was created. A delegate to the con-
         stitutional convention holds his position f o r the e n t i r e
         period of time the constitutional convention i s in
         session. His position i s permanent and continuous in the
         sense t h a t i t continuously exists until the duties f o r
         which i t was created have been completed. I t i s not
         temporary or occasional in that i t i s a f u l l time posi-
         tion for the length of time required f o r completion of
         the convention's work. While i t i s true t h a t constitu-
         tional conventions are ca1 led b u t seldom, when a partic-
         ular constitutional convention i s called the delegates
         are elected f o r t h a t particular constitutional conven-
         tion alone and the convention possesses permanency and
         continuity until i t s purpose i s completed; there i s
         nothing temporary or occasional in the work of i t s dele-
         gates while the convention i s i n session and carrying
         out i t s duties. Contemporary experience notwithstanding,
         a public position need not be conceived and created in
         perpetuity in order to qualify as a pub1 i c office."
         (Emphasis suppl ied. )
         The foregoing underlined words [while] in session, are the words
t h a t Relator Mahoney stresses on his contention that adjournment sine die
ends his status or position.      However, that connotation cannot be placed on
the meaning of the two words "in session" as used in Lennon.          There the
Court did not have before i t the situation we have now.        Rather, we have
almost the reverse.    The same purposes of the constitutional prohibitory
language referred to above apply equally to Constitution Convention members.
While we recognize t h a t there may be some argument made t h a t a s t a t e treasurer
does not have policy making functions, yet the same purposes of the prohibitions
apply t o a l l constitutional o f f i c e r s .    B our analysis of the Enabling Act,
                                                     y
the Constitutional Articles pertinent, and our language i n Lennon, we find
the prohibitions applicable.
          W also find by the 1anguage and analysis t h a t the 'term' of the
           e
prohibition goes on t o the repeal of the Enabling Act.                   Again, we give
recognition t o overall i n t e n t of the l e g i s l a t u r e t o t r e a t i n g the members of
the Convention as Legislators.             The Enabling Act was drafted and enacted
w i t h Lennon and i t s language as the declaratory judgment guide t h a t i t was.
          So f a r we have discussed the basic question in the l i g h t of the
Enabling Act, the Constitution, and the Lennon judgment in the main.                        NOW,
we look t o the Convention's actions.              W referred before t o the motion made
                                                    e
and carried t h a t the Convention "adjourned s i n e die".              Amicus argues t h a t ,
previously quoted Art. XIX, Sec. 8 , provision s e t t i n g the l i m i t s of an elec-
tion f o r submission of proposals t o the people, requires by i t s language an
"adjournment" with a f i n a l i t y o r termination of a l l functions, or t h a t i t be-
come functus o f f i c i o , before an election can be held on June 6 , 1972.                 It
seems plain t o a s t h a t an adjournment referred t o in Art. XIX, Sec. 8 , need
not have t h a t f i n a l i t y with respect t o a l l functions, but only with respect
t o f i n a l i t y of the revisions, a1 terations or amendments t o t h e constitution
t o be submitted t o the e l e c t o r a t e .
          A t any r a t e , the Convention, on March 16, 1972, passed i t s Resolution
No. 14 which, among a l l of the other proceedings of the Convention, i s a
matter of record i n Respondent Murray's o f f i c e .          Respondent Murray does not
question the v a l i d i t y o r l e g a l i t y of Resolution No. 14.
          Resolution No. 14 i s as follows:
          "WHEREAS, the Montana Constitutional Convention has
          nearly completed i t s substantive a c t i v i t i e s and i s making
          arrangements f o r adjournment s i n e d i e i n order t o meet i t s
          election date commitment of June 6 , 1972; and
          "WHEREAS, p r i o r t o adjournment s i n e d i e t h e Convention
          will not be able t o complete i t s procedural, administrative
          and voter education a f f a i r s , a l l of which must be concluded
          in an orderly and responsible manner; and
           "WHEREAS, the Convention anticipates t h a t i t will need
         t o establish an appropriate committee t o manage and
         conclude a l l of i t s procedural, administrative and voter
         education a f f a i r s a f t e r adjournment sine d i e ;
         "NOW, THEREFORE, IT IS RESOLVED BY THE CONSTITUTIONAL
         CONVENTION OF THE STATE OF MONTANA A FOLLOWS:
                                             S
         "1. The Convention hereby creates a committee t o a c t
         with the President of the Convention on i t s behalf a f t e r
         adjournment s i n e d i e , delegating t o i t f u l l authority
         t o manage and conclude a l l of the Convention's procedural,
         administrative and voter education a f f a i r s , and t o spend
         the Convention's funds therefore, b u t only within the
         l i m i t s of i t s appropriation and such other funds as the
         Convention may have.
         "2. The Convention hereby appoints t o s a i d committee the
         President, Leo Graybill, J r . , who shall a c t as i t s chair-
         man, and the following delegates: John Toole, Dorothy Eck,
         Bruce Brown, Jean Bowman, Margaret Warden, Fred Martin ,
         Robert Vermillion, Katie Payne, Betty Babcock, Marshall
         Murray, Catherine Pemberton, John S c h i l t z , Thomas Joyce,
         George Harper, Bill Burkhardt, Jerome Loendorf, Oscar
         Anderson, Gene Harbaugh.
         " 3 . N delegate may serve on the committee who shall
                o
         seek public o f f i c e in t h e primary election t o be held on
         June 6 , 1972. The President, as chairman of the committee,
         shall have authority t o s u b s t i t u t e other Convention dele-
         gates f o r any committee members named herein who may de-
         cide t o seek public o f f i c e .
         "4. The Convention hereby delegates authority t o the com-
         mittee t o receive, disburse and account f o r a l l Federal
         funds which the Convention may receive.
         "5. The Convention a l s o delegates authority t o the com-
         mittee t o supervise and e d i t any and a l l voter education
         materials prepared on behalf of the Convention 6r by
         other persons r e l a t i v e t o the work of the Convention.
         "6. The committee shall terminate i t s work a t such time
         as a1 1 of the Convention's procedural , administrative and
         educational a f f a i r s have been completed, and a l l require-
         ments of t h e Enabling Act have been met."
          In the Resolution the Convention s t a t e s t h a t i t will not be able t o
complete i t s procedural, administrative or voter education a f f a i r s and i t i s
necessary t o create a Committee.         From a reading of Section 1 , i t i s obvious
t h a t the Convention continues t o e x i s t .   The Committee a c t s on behalf of
the Convention, in i t s place and stead.          I t c a r r i e s on until the procedural,
administrative and voter education a f f a i r s a r e concluded, and the money
appropriated t o i t has been spent.        These p a r t i c u l a r items of business a r e
substantial parts of the business of the Committee and the Convention.                      It
would appear t h a t the only thing t h a t the Committee cannot do t h a t the Con-
vention did i s propose f u r t h e r constitutional provisions or change o r modify
those proposed.       Other than t h a t , the Committee has a l l of the power of the
Convention.      This i s the way t h a t Respondent Murray interpreted t h e Resolution.
          Anticipating t h a t a delegate might wish t o seek a public o f f i c e , the
Convention adopted Section 3 of Resolution 14.
          I t i s agreed t h a t Mahoney was not a member of the Committee appoint-
ed by t h i s Resolution, but i t i s of i n t e r e s t t o note t h a t the Convention
anticipated t h a t some of i t s members might d e s i r e t o go on t o other public
o f f i c e , in s p i t e of the f a c t t h a t the business of the Convention was not f i n -
ished.    Not only did the Convention perpetuate i t s e l f , b u t i t opened the door
f o r members who aspired t o other offices.
          The Committee, in Section 4, has c a r t e blanche authority as t o the
money, Federal or t h a t l e f t over from the Convention.            W can see no d i f f e r -
                                                                        e
ence in what the Convention was doing before March 24, 1972, and what the
Committee was authorized t o do, other than making proposals f o r inclusion i n
the new constitution.         The f i n a l provision of Resolution 14, Section 6 , s t a t e s :
          "The committee shall terminate i t s work a t such time
          as a1 1 of the Convention's procedural , administrative
          and educational a f f a i r s have been completed, and a l l re-
          qui rements of the Enabl ing Act have been met .       w       s
          suppl ied .)
          W emphasize here t h a t we are not concerned i n t h i s case about the
           e
v a l i d i t y and l e g a l i t y of Resolution No. 14.   In what we shall r e f e r t o as a
companion case, #12260, S t a t e ex re1 . Kvaalen v . Leo Graybill, J r . , e t a1 . ,
the v a l i d i t y of Resolution No. 14 i s an issue.
          For t h i s additional reason, the contents of Resolution No. 14, Re-
l a t o r Mahoney's s t a t u s as a delegate i s continuing whether he, as an individual,
has any duties or not.          The f a c t i s t h a t the Convention, of which he i s a
member, s t i l l i s i n existence, a1 bei t adjourned.
          Accordingly, we find t h a t Relator Maho.ney now holds a public o f f i c e ,
and he i s p r o h i b i t e d by t h e C o n s t i t u t i o n from h o l d i n g another p u b l i c

office.      His term has n o t expired, and he continues t o be a delegate t o

t h e Convention.        Respondent Murray was c o r r e c t i n r e f u s i n g t o f i l e t h e

d e c l a r a t i o n f o r nomination, and t h e p e t i t i o n f o r a w r i t o f mandamus i s denied.




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