No 12255 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

CHARLES H MAHONEY, Relator,

FRANK MURRAY, Secretary of State, State of Montana, Respondent.

ORIGINAL PROCEEDING: For Relator: PhilipW Strope, argued, Helena, Montana. Robert LWoodahl, Attorney General, Helena, Montana. John C Connor, Assistant Attorney General, Helena, Montana. Lawrence D Huss, argued, Assistant Attorney General, Helena, Montana. For Respondent

### : John Risken, argued, Helena, Montana. Amicus Curiae: Wesley Wertz, argued, Helena, Montana.

Submitted: April 

### 7, 1972

Decided: 

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Filed: 

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### Mr. Justice Wesley Castles delivered the Opinion of the Court.

This is an original proceeding seeking a writ of mandamus directing the Secretary of Stateto receive and filea declaration of nomination for public office, that of StateTreasurer, by the relator. On ex parte application, this Court issued itsorder of April 3, 1972, acceptingjurisdiction, ordering the Attorney General to be joined as a relator, and setting the matter for hearing on April 7, 1972. Relator Charles H. Mahoney isa resident citizen of Jefferson County, Montana, and a qualified elector. Relator was elected on November 2, 1971, from District 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 LegislativeAssembly, Chapter 296, Laws of Montana 1971, as amended by Chapter 1 of the First Extraordinary Session of the Forty-second Legislative Assembly. The amendments came about as a result of the case "The Forty-second LegislativeAssembly of the Stateof Montana, and Frank Murray, Secretary of State of the State of Montana 

### v. Joseph L. Lennon, Clerk and Recorder of Cascade County, Montana", reported in 156 Mont. 416, 481 P.2d 330,and hereinafter referred to as the Lennon case. The Convention assembled, and itsmembers were sworn with Relator Mahoney a member, in an organizational meeting on November 29, 1971. Thereafter, the Convention assembled again in plenary session on January 17, 1972. Itcontinued tomeet until noon on March 24, 1972, when, aftermotion made and carried, it "adjourned sine die". Respondent Frank Murray isSecretary of Statewhose duties are set forth in

### Art. VII, Sec. 1,of the Montana Constitution, and in section;82-2201, et. seq., R.C.M. 1947. These duties include the filingof declarations of nomination for public office. Respondent Frank Murray isthe same public officer who as a party sought declaratoryjudgment in the Lennon case. -2-Robert L. Woodahl, Attorney General of Montana, because of the constitutional issues involved, was ordered joined as a re1ator. Attorney -GeneralWoodahl

### ,on January 28, 1972, had, inresponse to a request by the President of the Convention, issued an opinion appearing in Volume No. 34 of Attorney General'sOpinions as Opinion No. 34, in regard tothe eligibility of members of the Convention to become political candidates in the year 1972. Briefly, and we acknowledge before any facts concerning adjournment, election dates for Convention proposals, completion of work, or anything else, the opinion stated that members could, after adjournment sine die, serve inany public office. Because that opinion was rendered, itappeared the Attorney General should alsobe a relator. Five days afterthe previously mentioned "adjournment sine die", RelatorMahoney attempted tofilehis declaration of nomination and filingfee forthe office of StateTreasurer. The Secretary of Staterefused to accept the filing and advised Relator Mahoney that his filingwas refused as he was a duly elected member or delegate of the Constitutional Convention, 

### " 

## * * * since the Montana Supreme Court in [theLennon case] appears to hold that a Member of the Constitutional Convention is a public officer coming within the Constitutional provisions prohibiting publicofficers from simultaneously holding more than one publicoffice." Fol1 owing this occurrence, the present action was commenced by Re1ator Mahoney.This Court accepted original jurisdiction, atleast in part, due to the factthat the filing date forcandidates for nomination for election topublic office expires on April 27, 1972, and in fairness to all, time is short. Respondent Murray appeared by answer. The answer setup three defenses, essentially (1)that there was no claim for relief stated; (2) that the purported "adjournment sine die" was not an adjournment inthe sense of

a "termination" in thatthe Convention adopted itsResolution No. 14whichperpetuates the Convention for an indefinitetime inthe future by creating

a committee with full authority tomanage and conclude all of the Convention's procedural, administrative, and voter education affairs, and to spend funds of the Convention whether appropriated by the 1 egislature, received from federal funds or otherwise; and (3) that Relator Mahoney isprohibitedfrom holding two civil offices by Art. V, Sec. 7, of the Montana Constitutionand this Court's decision inLennon. Oral argument was had with argument by counsel for Relator Mahoney, Re1ator Woodahl

### , Respondent Murray and by Amicus CuriaeWesley W. Wertz. The petitionof Relator Mahoney seeks awritofmandamus and a reasonable attorney fee. The answer and briefof Respondent Murray would challenge the remedy ofmandamus as being an improper remedy inany event. We need not dwell here on the appropriateness ofthe remedy. Whether mandamus would be an available and proper remedy would depend on whether Relator Mahoney isqua1ifiedtofilefor public office, notwithstanding the refusal of Respondent Murray. The basic question, therefore, iswhether atthe time ofattempting tofilefor office Relator Mahoney was still a delegate and one who does presently "hold any public office" within the meaning of this Court's opinion inLennon. Puttingthe first part ofthe basic question another way, does a delegate have a term of office? Hereinafter all references toArticles shall be to the Constitution ofMontana. Chapter 1 ofthe First Extraordinary Session, Vol. 11, Laws of Montana 1971, amending Chapter 296, Laws ofMontana 1971, shall be referred to herein as the Enabling Act. Art. XIX, Sec. 8, provides: "The legislativeassembly may atany time, by a vote of two-thirds of the members elected to each house, submit tothe electors of the state the question whether there shall be a convention to revise, a1ter, or amend this constitution; and ifa majorityof those voting on the question shall declare infavor ofsuch convention, the legislative assembly shall at itsnext session provide for the calling thereof. The number ofmembers of the convention shall be the same as that of the house of representatives, and they shall be elected inthe same manner, atthe same places, and inthe same districts.The legislativeassembly shall in the act calling the convention designate the day, hour and place of its meeting, fixthe pay of itsmembers and officers, and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding the members shall take an oath to support the constitution of the United States and of the state of Montana, and to faithfully discharge theirduties as members of the convention. The qualifications of members shall be the same as of the members of the senate, and vacancies occurring shall be filled in the manner provided for filling vacancies in the legislative assembly. Said convention shall meet within three months after such election and prepare such revisions, a1terations or amendments to the constitution as may be deemed necessary, which shall be submitted to the electors for their ratification or rejection atan election appointed by the convention for that purpose, not less than two nor more than sixmonths afterthe adjournment thereof; and unless so submitted and approved by amajority of the electors voting atthe election, no such revision, a1teration or amendment shall take effect." Art. V, Sec. 7 provides: "No senator or representative shall, during the term forwhich he shall have been elected, be appointed to any civil office under the state; and no member of congress, or other person holding an office (except notary public, or in themi1 itia)under the United States or this state, shall be amember of either house during his continuance in office." 

### Art. VII, Sec. 4, referring to stateoffices of governor, secretary of state

### ,attorney general

### ,treasurer, auditor, superintendent of public instruction and lieutenant-governor, states in part: 

### " 

## * ** No officermentioned in this section shall be eligible to, or hold any other public office, except member of the stateboard af educatIionduring his term of office." Art. VIII, Sec. 35, prohibits justices of the supreme court and judges from holding other public officewhile he remains in office. In the Enabling Act itis provided, inSection 2, that the number of delegates shall be the same as provided for the election of members of the house of representatives and Section 3 provides that the qua1ifications of delegates shall be the same as that of members of the state senate. Section 4(1) states: "Delegates to the constitutional convention shall be elected in the same manner as members of the houseof representatives 

## * *

## *." Section 5 requires the constitutional oath of office required by 

### Art. XIX, Sec. 1. Section 6 provides for vacancies to be filled in the

same manner as for legislativevacancies. Section 7(6) states: "Itshall be the duty of the delegate elected to assemble in plenary session in the chambers of the house of representatives in the statecapitol building inthe city of Helena, at 10:OO a.m. on January 17, 1972. The convention, which may recess from time to time, shall then remain in session as long as necessary." ' Section 16 refers to pay and expenses as the same as legislators and in subs. (4)refers to "officers and employees of the stateand its political subdivisions who are not prohibited by the Montana Constitution or Laws of Montana from serving as delegates 

## *

## * *.I1 Section 21 provides for appropriations forthe biennium ending June 30, 1973. Section 24 provides for 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 isfor two years, the same as that of a representative, beginning January 17, 1972 and ending January 17, 1974. Respondent Murray's position isessentially 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 for a term ending on repeal of the act; funds

were provided until repeal of the act; the convention could remain in session "as long as necessary" subject to the repealer clause; itsduties continued through submission of itsproposals to the people atan election to be held after "adjournment" within a specified time as specified in 

### Art. XIX, Sec. 8; itsmembers or delegates were to be paid and treated in all other respects in the same manner as legislators, particularly as house of representativemembers.In Lennon atpage 422 of 156Mont. this Court said: "Directing our attention to the firstissue before us for determination, we find that itcontains two questions which we answer as follows: "Any stateand local officers who are prohibited by the constitution or laws of Montana from holding more than one officemay not serve as delegates to the constitutional convention. A delegate to the constitutional convention isa 'state officer' holding a publicoffice of a civil nature.

"These restrictions prevent such officers from holding any other 'public office' or 'civil office' of the state, these 

### two terms are synonymous. Stateex re1

## . Barney 

### v. Hawkins, 79Mont. 506, 257 P. 411. 

## * *

## *" This Court went on to 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 for the benefit of the public' satisfying requirement (2) of Barney. Plaintiffs and relators argue that this requirement isnot satisfied, drawing a distinction between officers of the executive, legislative and judicial branches of the state government and delegates to a constitutional convention who act as agents of thepeople occupying no position in any recognized branch of stategovernment. 

### Our attention has been directed to several cases from other states upholding such distinction under their particular state history and the particular provisions of their state constitutions. These cases arenot persuasive as applied to the present controversy in Montana, being distinguishable on the basis of such factors as historical considerations peculiar to such state, legislative precedent, existing rather than proposed legislation, inherent.legislative powers to call a constitutional convention, different constitutional provisions, and dissimilar issues presented for decision [citing cases] 

## * *

## *. "A delegate to the constitutional convention exercises sovereign powers of a legislative character of the highestorder. That the final product of such legislative authority is subject to referendum, renders itno less an exercise of sovereign power. The delegation of unlimited power isnot essential to the exercise of sovereign power. To draw a distinction between other state officers and delegates to a constitutional convention, both of whom act as agents of the people exercising sovereign powers in theirbehalf

### ,is to deny our basic concept of government." "The purpose of the Montana consti tutional restrictions against certain officers serving as delegates to a constitutional convention is readily apparent. Itis toinsure independent consideration by the delegates of the provisions of the new constitution, to reduce concentration of political power atthe constitutional convention by eliminating as delegates incumbent office holders

### ,and to foreclose the possibility of such officers creating new offices for themselves or increasing the salaries or compensation of their own offices. See Kederick 

### v. Heintzleman, D. C., 132 F.Supp. 582, for the expression of similar principles in prohibiting a state senator from filingfor the position of delegate to the Alaskan constitutional convention. These considerations cannot be given effect unless a delegate to the constitutional convention holds a 'public office' thereby placing him within the ambi

### t of constitutional prohibitions. "Requirement (5) of Barney that an officemust have some permanency and continuity and not be only temporary or occasional in order to cbnstitute a '~ublic office-' is satisfied in the case of a delegate to the constitutional convention. This requirement isa relativematter and must be interpreted in the light of the purposes for which the position was created. A delegate to the constitutional convention holds his position for the entire period of time the constitutional convention is in session. His position ispermanent and continuousin the sense that itcontinuously exists until the duties for which itwas created have been completed. Itisnot temporary or occasional in that itis a full time position for the length of time required for completion of the convention's work. While itistrue that constitutional conventions are ca1led but seldom, when a particular constitutional convention is called the delegates are elected for that particular constitutional convention alone and the convention possesses permanency and continuity until itspurpose iscompleted; there is nothing temporary or occasional in the work of itsdelegates while the convention is insession and carrying out itsduties. Contemporary experience notwithstanding, a public position need not be conceived and created in perpetuity in order to qualify as a pub1icoffice." (Emphasis supplied.) The foregoing underlined words [while] in session, are the words that 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 itthe situationwe 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 that theremay be some argument made that a statetreasurer does not have policy making functions, yet the same purposes of the prohibitionsapply to all constitutional officers. By our analysis of the Enabling Act, the Constitutional Articles pertinent, and our language inLennon, we find the prohibitions applicable. We also find by the 1 anguage and analysis that the 'term' of the prohibition goes on to the repeal of the Enabling Act. Again, we give recognition to overall intent of the legislature to treating themembers of the Convention as Legislators. The Enabling Act was drafted and enacted with Lennon and itslanguage as the declaratoryjudgment guide that itwas. So farwe have discussed the basic question in the light of the Enabling Act, the Constitution, and the Lennon judgment in themain. NOW,

we look to the Convention's actions. We referred before to themotion made and carried that the Convention "adjourned sine die". Amicus argues that, previously quoted 

### Art. XIX, Sec. 8, provision setting the limits of an election for submission of proposals to the people, requires by its language an "adjournment" with a finality or termination of all functions, or that itbecome functus officio, before an election can be held on June 6, 1972. It

seems plain to

### asthat an adjournment referred to in 

### Art. XIX, Sec. 8, need not have that finalitywith respect to all functions, but only with respect to finality of the revisions, a1terations or amendments to the constitution to be submitted to the electorate. Atany rate, the Convention, on March 16, 1972, passed itsResolution No. 14which, among all of the other proceedings of the Convention, isa matter of record in Respondent Murray's office. Respondent Murray does not question the validity or legality of Resolution No. 14. Resolution No. 14 isas follows: "WHEREAS, the Montana Constitutional Convention has nearly completed its substantive activities and ismaking arrangements for adjournment sine die inorder tomeet its election date commitment of June 6, 1972; and "WHEREAS, prior to adjournment sine diethe Convention will not be able to complete itsprocedural, administrative and voter education affairs, all of which must be concluded in an orderly and responsiblemanner; and"WHEREAS, the Convention anticipates that itwill need to establish an appropriate committee tomanage and conclude all of itsprocedural, administrative and voter education affairs after adjournment sine die; "NOW, THEREFORE, IT IS RESOLVED BY THE CONSTITUTIONAL CONVENTION OF THE STATE OF MONTANA AS FOLLOWS: "1. The Convention hereby creates a committee to act with the President of the Convention on itsbehalf after adjournment sine die, delegating to itfull authority tomanage and conclude all of the Convention's procedural, administrative and voter education affairs, and to spend the Convention's funds therefore, but only within the limits of itsappropriation and such other funds as the Convention may have. "2. The Convention hereby appoints to said committee the President, Leo Graybill, Jr., who shall act as itschairman, 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 Schiltz, Thomas Joyce, George Harper, Bill Burkhardt, Jerome Loendorf, Oscar Anderson, Gene Harbaugh. "3. seek June No delegatemay serve on the committee who shall public office in the primary election to be held on 6, 1972. The President, as chairman of the committee, shall have authority to substitute other Convention delegates forany committee members named herein who may decide to seek public office. "4. The Convention hereby delegates authority to the committee to receive, disburse and account for all Federal funds which the Convention may receive. 

### "5. The Convention also delegates authority to the committee to supervise and editany and all voter education materials prepared on behalf of the Convention 6r by other persons relative to thework of the Convention. "6. The committee shall terminate itswork atsuch time as a11of the Convention's procedural

### ,administrative and educational affairshave been completed, and all requirements of the Enabling Act have been met." In the Resolution the Convention states that itwill not be able to complete itsprocedural, administrative or voter education affairs and itis necessary to create a Committee. From a reading of Section 1, itisobvious that the Convention continues to exist. The Committee acts on behalf of the Convention, in itsplace and stead. Itcarries on until the procedural, administrative and voter education affairs are concluded, and themoney appropriated to ithas been spent. These particular items of business aresubstantial parts of the business of the Committee and the Convention. It would appear that the only thing that the Committee cannot do that the Convention did ispropose further constitutional provisions or change ormodify those proposed. Other than that, the Committee has all of the power of the Convention. This is theway that Respondent Murray interpreted the Resolution. Anticipating that a delegatemight wish to seek a public office, the Convention adopted Section 3 of Resolution 14. Itisagreed thatMahoney was not amember of the Committee appointed by this Resolution, but itisof interest to note that the Convention anticipated that some of itsmembers might desire togo on toother public office, in spiteof the fact that thebusiness of the Convention was not finished. Not only did the Convention perpetuate itself, but itopened the door formembers who aspired toother offices. The Committee, in Section 4, has carte blanche authority as tothe money, Federal or that leftover from the Convention. We can see no difference in what the Convention was doing before March 24, 1972, and what the Committee was authorized todo, other than making proposals for inclusion in thenew constitution. The final provision of Resolution 14, Section 6, states: "The committee shall terminate itswork atsuch time as a11of the Convention's procedural

### ,administrative and educational affairs have been completed, and all requirements of the Enabling Act have been met.ws supplied.) We emphasize here thatwe are not concerned inthis case about the validity and legality of Resolution No. 14. In what we shall refer to as a companion case, #12260, Stateex re1

## . Kvaalen 

### v. Leo Graybill, Jr., eta1

## ., the validity of Resolution No. 14 isan issue. For this additional reason, the contents of Resolution No. 14, RelatorMahoney's status as a delegate iscontinuing whether he, as an individual, has any duties or not. The fact isthat the Convention, of which he isa member, still is inexistence, a1bei

### t adjourned. Accordingly, we find that Relator Maho.ney now holds a public office,and he is prohibited by the Constitution from holding another public office. His term has not expired, and he continues to be a delegate to the Convention. Respondent Murray was correct inrefusing to filethe declaration for nomination, and the petitionfor awritof mandamus isdenied.

~ssocate Justice