No 12255 

IN THE 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: 

Philip W Strope, argued, Helena, Montana. 

Robert L Woodahl, 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: APR 2 1 1m 

Filed: ApR 2 1 19% 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an original proceeding seeking a writ of mandamus directing 

the Secretary of State to receive and file a declaration of nomination for 

public office, that of State Treasurer, by the relator. On ex parte application, this Court issued its order of April 3, 1972, accepting jurisdiction, 

ordering the Attorney General to be joined as a relator, and setting the 

matter for hearing on April 7, 1972. 

Relator Charles H. Mahoney is a 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 Legislative Assembly, 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 Legislative Assembly of the State of 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 its members 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. 

It continued to meet until noon on March 24, 1972, when, after motion made 

and carried, it "adjourned sine die". 

Respondent Frank Murray is Secretary of State whose 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 filing of declarations of nomination for public office. Respondent Frank Murray is the same public officer 

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 ator. Attorney 

-General Woodahl , on January 28, 1972, had, in response to 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 to the el igibility 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 

in any public office. Because that opinion was rendered, it appeared the 

Attorney General should also be a relator. 

Five days after the previously mentioned "adjournment sine die", Relator Mahoney attempted to file his declaration of nomination and filing fee 

for the office of State Treasurer. The Secretary of State refused to accept 

the filing and advised Relator Mahoney that his filing was refused as he was 

a duly elected member or delegate of the Constitutional Convention, " * * * 

since the Montana Supreme Court in [the Lennon case] appears to hold that a 

Member of the Constitutional Convention is a public officer coming within the 

Constitutional provisions prohibiting publ ic officers from simultaneously holding more than one publ ic office." 

Fol 1 owing this occurrence, the present action was commenced by Re1 ator 

Mahoney. 

This Court accepted original jurisdiction, at least in part, due 

to the fact that the filing date for candidates for nomination for election 

to public office expires on April 27, 1972, and in fairness to all, time is 

short. 

Respondent Murray appeared by answer. The answer set up three defenses, essentially (1) that there was no claim for relief stated; (2) that 

the purported "adjournment sine die" was not an adjournment in the sense of 

a "termination" in that the Convention adopted its Resolution No. 14 which 
perpetuates the Convention for an indefinite time in the future by creating 

a committee with full authority to manage 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 egi sl ature, received from 

federal funds or otherwise; and (3) that Relator Mahoney is prohibited from 

holding two civil offices by Art. V, Sec. 7, of the Montana Constitution and 

this Court's decision in Lennon. 

Oral argument was had with argument by counsel for Relator Mahoney, 

Re1 ator Woodahl , Respondent Murray and by Amicus Curiae Wesl ey W. Wertz. 

The petition of Relator Mahoney seeks a writ of mandamus and a reasonable attorney fee. The answer and brief of Respondent Murray would challenge 

the remedy of mandamus as being an improper remedy in any event. We need not 

dwell here on the appropriateness of the remedy. Whether mandamus would be an 

available and proper remedy would depend on whether Relator Mahoney is qua1 ified to file for public office, notwithstanding the refusal of Respondent 

Murray. The basic question, therefore, is whether at the time of attempting 

to file for office Relator Mahoney was still a delegate and one who does 

presently "hold any public office" within the meaning of this Court's opinion 

in Lennon. Putting the first part of the basic question another way, does a 

delegate have a term of office? 

Hereinafter all references to Articles shall be to the Constitution 

of Montana. Chapter 1 of the First Extraordinary Session, Vol. 11, Laws of 

Montana 1971, amending Chapter 296, Laws of Montana 1971, shall be referred 

to herein as the Enabling Act. 

Art. XIX, Sec. 8, provides: 

"The legislative assembly may at any time, by a vote 

of two-thirds of the members elected to each house, 

submit to the electors of the state the question whether 

there shall be a convention to revise, a1 ter, or amend 

this constitution; and if a majority of those voting on 

the question shall declare in favor of such convention, 

the legislative assembly shall at its next session provide for the calling thereof. The number of members of 

the convention shall be the same as that of the house 

of representatives, and they shall be elected in the 

same manner, at the same places, and in the same districts. 
The legislative assembly shall in the act calling the 

convention designate the day, hour and place of its 

meeting, fix the pay of its members 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 their duties 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 fill ing vacancies in the legislative 

assembly. Said convention shall meet within three 

months after 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 for their ratification or rejection at an 

election appointed by the convention for that purpose, 

not less than two nor more than six months after the 

adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the 

election, no such revision, a1 teration or amendment 

shall take effect." 

Art. V, Sec. 7 provides: 

"No senator or representative shall, during the term 

for which 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 publ ic, or in the mi 1 i tia) under the United 

States or this state, shall be a member of either 

house during his continuance in office." 

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

of state , attorney general , treasurer, audi tor, superi ntendent of publ i c 

instruction and lieutenant-governor, states in part: 

" * * * No officer mentioned in this section shall 

be eligible to, or hold any other public office, except 

member of the state 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 it is provided, in Section 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 qua1 ifications 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 house 
of 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 legislative vacancies. 

Section 7(6) states: 

"It shall be the duty of the delegate elected to 

assemble in plenary session in the chambers of the house 

of representatives in the state capitol building in the 

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 state and 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 for the 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 is for two years, 

the same as that of a representative, beginning January 17, 1972 and ending 

January 17, 1974. Respondent Murray's position is 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 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; its duties continued through submission of its proposals to the people at an election to 

be held after "adjournment" within a specified time as specified in Art. XIX, 

Sec. 8; its members or delegates were to be paid and treated in all other 

respects in the same manner as legislators, particularly as house of representative members. 
In Lennon at page 422 of 156 Mont. this Court said: 

"Directing our attention to the first issue before us 

for determination, we find that it contains two questions 

which we answer as follows: 

"Any state 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 constitutional convention. A delegate to the cons ti tutional 

convention is a 'state officer' holding a publ ic office 

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. State ex re1 . Barney v. 

Hawkins, 79 Mont. 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 publ ic' satisfying requirement (2) of Barney. Plaintiffs and relators argue that this requirement is not 

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 the people occupying no position in 

any recognized branch of state government. 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 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 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 highest order. That the final product of such legislative authority is subject to referendum, renders it no less an 

exercise of sovereign power. The delegation of unlimited 

power is not 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 their behalf , is to deny our basic concept of government." 

"The purpose of the Montana cons ti tuti onal restrictions 

against certain officers serving as delegates to a constitutional convention is readily apparent. It is to 
insure independent consideration by the delegates of the 

provisions of the new constitution, to reduce concentration of pol i tical power at the constitutional convention 

by el iminating as delegates incumbent off ice 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 filing for 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 office must 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 is a relative matter 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 is permanent and continuous in the 

sense that it continuously exists until the duties for 

which it was created have been completed. It is not 

temporary or occasional in that it is a full time position for the length of time required for completion of 

the convention's work. While it is true that constitutional conventions are ca1 led 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 its purpose is completed; there is 

nothing temporary or occasional in the work of its delegates while the convention is in session and carrying 

out its duties. Contemporary experience notwithstanding, 

a public position need not be conceived and created in 

perpetuity in order to qualify as a pub1 ic office." 

(Emphasis suppl ied. ) 

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 it 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 that there may be some argument made that a state treasurer 

does not have policy making functions, yet the same purposes of the prohibitions 
apply to all constitutional officers. By our analysis of the Enabling Act, 

the Constitutional Articles pertinent, and our language in Lennon, 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 the members of 

the Convention as Legislators. The Enabling Act was drafted and enacted 

with Lennon and its language as the declaratory judgment guide that it was. 

So far we have discussed the basic question in the light of the 

Enabling Act, the Constitution, and the Lennon judgment in the main. NOW, 

we look to the Convention's actions. We referred before to the motion 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 it become functus officio, before an election can be held on June 6, 1972. It 

seems plain to as that an adjournment referred to in Art. XIX, Sec. 8, need 

not have that finality with respect to all functions, but only with respect 

to finality of the revisions, a1 terations or amendments to the constitution 

to be submitted to the electorate. 

At any rate, the Convention, on March 16, 1972, passed its Resolution 

No. 14 which, among all of the other proceedings of the Convention, is a 

matter of record in Respondent Murray's office. Respondent Murray does not 

question the validity or legality of Resolution No. 14. 

Resolution No. 14 is as follows: 

"WHEREAS, the Montana Constitutional Convention has 

nearly completed its substantive activities and is making 

arrangements for adjournment sine die in order to meet its 

election date commitment of June 6, 1972; and 

"WHEREAS, prior to adjournment sine die the Convention 

will not be able to complete its procedural, administrative 

and voter education affairs, all of which must be concluded 

in an orderly and responsible manner; and 
"WHEREAS, the Convention anticipates that it will need 

to establish an appropriate committee to manage and 

conclude all of its procedural, 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 its behalf after 

adjournment sine die, delegating to it full authority 

to manage 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 its appropriation 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 its chairman, 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 delegate may 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 for any 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 edit any and all voter education 

materials prepared on behalf of the Convention 6r by 

other persons relative to the work of the Convention. 

"6. The committee shall terminate its work at such time 

as a1 1 of the Convention's procedural , administrative and 

educational affairs have been completed, and all requirements of the Enabling Act have been met." 

In the Resolution the Convention states that it will not be able to 

complete its procedural, administrative or voter education affairs and it is 

necessary to create a Committee. From a reading of Section 1, it is obvious 

that the Convention continues to exist. The Committee acts on behalf of 

the Convention, in its place and stead. It carries on until the procedural, 

administrative and voter education affairs are concluded, and the money 

appropriated to it has been spent. These particular items of business are 
substantial 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 is propose further constitutional provisions or change or modify 

those proposed. Other than that, the Committee has all of the power of the 

Convention. This is the way that Respondent Murray interpreted the Resolution. 

Anticipating that a delegate might wish to seek a public office, the 

Convention adopted Section 3 of Resolution 14. 

It is agreed that Mahoney was not a member of the Committee appointed by this Resolution, but it is of interest to note that the Convention 

anticipated that some of its members might desire to go on to other public 

office, in spite of the fact that the business of the Convention was not finished. Not only did the Convention perpetuate itself, but it opened the door 

for members who aspired to other offices. 

The Committee, in Section 4, has carte blanche authority as to the 

money, Federal or that left over from the Convention. We can see no difference in what the Convention was doing before March 24, 1972, and what the 

Committee was authorized to do, other than making proposals for inclusion in 

the new constitution. The final provision of Resolution 14, Section 6, states: 

"The committee shall terminate its work at such time 

as a1 1 of the Convention's procedural , administrative 

and educational affairs have been completed, and all requi rements of the Enabl ing Act have been met .ws 

suppl ied .) 

We emphasize here that we are not concerned in this case about the 

validity and legality of Resolution No. 14. In what we shall refer to as a 

companion case, #12260, State ex re1 . Kvaalen v. Leo Graybill, Jr., et a1 . , 

the validity of Resolution No. 14 is an issue. 

For this additional reason, the contents of Resolution No. 14, Relator Mahoney's status as a delegate is continuing whether he, as an individual, 

has any duties or not. The fact is that the Convention, of which he is a 

member, still is in existence, a1 bei 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 in refusing to file the 

declaration for nomination, and the petition for a writ of mandamus is denied. 

~ssocate Justice