No. 12630 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

THOMAS SNYDER, Petitioner and Appellant,

JAMES McKINLEY, HOWARD HAMMER and ED SPANKUTH, as Commissioners of Ravalli County, Montana, Respondents and Respondents.

Apneal from: District Court of theFourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Tipp and Hoven, Missoula, Montana Vernon Hoven argued, Missoula, Montana For Respondents : Murray and Holt, Missoula, Montana Douglas G. Harkin argued, Hamilton, Montana

Submitted: February 27, 1974 Decided

### :MAY 

## 6 

## 1914

### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This 

### is 

### an appeal by petitioner from an order of the districtcourt of the fourthjudicial districtof the State of Montana, in and for the County of Ravalli, dismissing a peremptory writ of mandate which ordered the Board of County Commissioners to hold an election. The described areawas owned by a non-resident Utah corporation. There

### were

### no individual freeholders in the entire area, even though as appears hereinafter there were residents and electors. The 

### matter was originallypresented to the district court

on an agreed statement of factswhich noted, among other things, that 51qualified electors and residents of Pinedale community signed 

### a petition, directed to the county commissioners, respondents, and hereinafter referred to as the Board, requesting them to hold an election for the purpose of incorporating 

### a city

or town. The petition

### was submitted to the Board 

### on May 

### 23, 1972. Three months lateron September 1, 1972, the Board denied the petition. On September 

### 8, 1972, petitioner and appellant, Tom Snyder, filed an application for 

### a writ of mandate to compel the Board to call 

### an election pursuant to section 11-203, R.C.M. 1947, and thereafter the Court issued



### an alternative 

### writfor the Board to show cause why a permanent writshouldnot issue; by stipulation of counsel thematter was continued until the above mentioned agreed statement of facts

was filed 

### atwhich timethe 

### trialjudge Emmet Glore took the matter under advisement and gave counsel 

### time to submit briefs.On December 29, 

### 1972, Judge Glore issued an order granting the 

### writof mandate but said order was not filed in the officeof the clerk of court of Ravalli County until January 4, 1973,

some four days after Judge Glore lostjurisdiction due to his retirement on December 31, 1972. After studying several decisions of this Court, counsel for both sides agreed that Judge Glore's order was void, and Judge Dussault, who succeeded Judge Glore, assumed jurisdiction. On February 13, 1973, Judge Dussault, having had the cause submitted to him, ordered an election, but this order was stayed on April 

### 6,when special counsel requested time to submit briefs. On April 13, 1974, Judge Dussault set asidehis order of February 13and directed that certain things be done prior to hishearing the matter again, one of which would have allowed petitioner to submit a new petition to respondent Board. The petitioner refused to submit a new petition so the respondent Board, following Judge Dussault'

### s order, provided a new census which required more information than the previous census, and the inhabitants of the area refused to answer allbut four of said questions alleging that thiswas 

### an interference with their personal liberties. In the meantime, and unknown to any of counsel, the districtjudge, or the parties, the Legislature had passed certain amendments to section 11-203, R.C.M. 1947. These amendments, interestingly, were contained in two separate acts, Chapter 

### 86, Laws of 1973 and Chapter 515, Laws of 1973. Neither amendatory enactment mentioned or incorporated the changes made by the

### other

# . The amendatory enactments didnot con£lic t

# . Chapter 515 wasmade effectiveon passage and approval. It 

### was signed by the Governor on April 4, 1973. Thus, as Judge Dussault assumed jurisdiction he 

### was totallyunaware of thenew provisions. He did not become aware of them untilAugust 20, 1973. More 

### willbe said about these enactments hereinafter. On 

### June 21, 1973, afterhearing arguments on certain motions the court directedrespondent Board tohold an election pursuant to section 11-204, R.C.M. 

### 1947. A writ

### of mandate

was 

### served on the Board on July 13, 1973, with the return being dated July 17, 1973. Some eleven days lateron July 26, 1973, the Board filedmotions for (1) extension of time to filenotice of appeal, (2) request to reopen hearings for additional testimony, (3) and forpermission to present additional testimony. The court granted the ~oard's request to extend time 

### fornoticeof appeal on August 10, 1973, which

was followed by petitioner's motion to quash the order extending time, datedAugust 17, 1973, On 

### August 24, 1973, the court deniedpetitioner's motion to quash and the ~oard's motion to hear additional evidence. Then on September 12, 1973, the Board filed a motion to dismiss thewrit

### of mandate and the court on September 18, 1973, ruled that the orderof July 13, 1973, directing that an electionbe held, was 

### dismissed and this appeal results. Counsel for the petitioner, reviewing the history of the litigation, refers to it 

### as either a comedy of errors orviewedin the eyes of the appellant, a tragedy of errors for on three separate occasions the question involved was determined by the court only to be set aside. The respondent Board argues that it took timely action after the

### writ issued on June 

### 21, 1973, when it learned, unbeknown to allparties in the action and thejudge, that the Legislaturehad amended section 11-203, R.C.M. 1947, by two acts-- Chapter 86, Laws of 1973, which provided that no area could be incorporated within threemiles of a presently incorporated area; and Chapter 515, Laws of 1973, stating the petition for incorporation now requires the signatures of 213 of the qualified electors against 50 electors under the oldAct, 

### a canvas from house to house must be conducted as compared to no specified type of canvas under the oldAct; that there 

### must be 150 electors in each of the several wards where no number was required under the old law. Allof these changes were made with an effective dateof April 4, 1973, on one Act and July 

### 1, 1973, on the other. From the foregoing, it 

### is seen that Judge Dussault had clearlybeen unaware of the changes in the law and just as clearlyhad been incorrect inordering an electionon 

### a moot petition, This, aside from any previous determinations. The Commissioners moved to dismiss the peremptory writ of mandate under Rule 60(b)

### (6),M.R.Civ,P. which provides in part that: "On motion

# *** the court may relieve 

### a party

# *** from a finaljudgment, order, or proceeding for the following

reasons: 

# * * * (6) any other reason justifying relief from

### the operation of thejudgment. 

# *

# **" Several issues are set forth forour consideration: (1) Did the court erringranting an extension of time to the defendants inwhich to appeal its

### order of August 10, 1973, and denying respondent ~oard's motion to quash the order granting such extension by itsorder of August 24, 1973? (2) Did the lower court err inmaking its

### order of September 18, 1973, suspending the order directing defendants to call a special election asprovided for in its

### order of June 21, 1973? (3) Did the court err in dismissing thewritof mandate heretofore issued as set forth in its

### order of September 28, 1973?The foregoing issues allinvolve technical time limits 

### and do not embrace a consideration of the correctness of the final decision of the district court. Inview of the new law in effect atthe time, to hold an election atthat time under a petition clearlynot validwould be an idle act

# -- not to say expensive. The law does not require idle acts. Rule 60(b) 

### (6) M.R.Civ.P., as partially quoted above provides for setting aside ajudgment or order within a reasonable time. Certainlyunder the factshere, within time allowed for an 

### appeal, the time was reasonable. The Comissioners moved to dismiss the peremptory writ

### of mandate promptly afterbeing advised of the amendments to the controlling statutes. The appellant here relies on Federal Land Bk. 

### v. Gallatin Co

# ., 84Mont. 98, 274 P. 

### 288, for the proposition that the Court

### willnot grant relief formistakes of 

### law. That casewas in 1929, long before the adoption of Rule 

### 60 (b)(6)and is distinguishable inother ways. It does not apply here. Wehave reviewed the issues presented and findno merit. Any election held forpurposes of incorporation 

### must comply with the 

### lawand to order an electionnow under the old petition would be meaningless. Accordingly, the order appealed from 

### is affirmed and each party 

### willbear their own costs.

Justice 

### WE CONCUR:

- .. Chief Justice