
    [File No. 6289.]
    W. E. STITZEL, Petitioner, v. ROBERT BYRNE as Secretary of State of North Dakota, Respondent.
    (256 N. W. 374.)
    Opinion filed July 20, 1934.
    
      
      Howard O. Fuller j for petitioner.
    P. O. Salhre, Attorney General, for respondent.
   Per Curiam :

The petitioner invokes the original jurisdiction of this court in an application for a writ of mandamus directed to the secretary of state requiring him to receive, file and make an official record of the appointment of the petitioner to the position of state highway commissioner.

The application was based upon an appointment by the lieutenant governor assuming to act as governor upon the theory that the powers and duties of the office of governor had devolved upon him.

Jt is conceded that since the matter was argued the secretary of state has received and filed applicant’s oath of office tendered under a new appointment. Consequently the issues involved in this application have become moot. The proceedings are dismissed without costs.

Burr, Ch. J., and Burice, Nuessle and Moellring, JJ., and Mc-Kenna, Dist. J., concur.

Mr. Justice Christianson, being disqualified, did not participate, Hon. Geo. M. McKenna, Judge of the Third Judicial District, sitting in his stead.  