No. 12630 

IN THE 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 the Fourth 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. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by petitioner from an order of the 

district court of the fourth judicial district of 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 area was 

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 originally presented to the district court 

on an agreed statement of facts which noted, among other things, 

that 51 qualified 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 later on 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 writ for the Board to show cause why a permanent 

writ should not issue; by stipulation of counsel the matter was 

continued until the above mentioned agreed statement of facts 

was filed at which time the trial judge 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 

writ of mandate but said order was not filed in the office of 

the clerk of court of Ravalli County until January 4, 1973, 

some four days after Judge Glore lost jurisdiction 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 aside his order 

of February 13 and directed that certain things be done prior 

to his hearing 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 all but four of 

said questions alleging that this was an interf erence with their 

personal liberties. 

In the meantime, and unknown to any of counsel, the district judge, 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 did not con£ lic t . Chapter 

515 was made effective on passage and approval. It was signed 

by the Governor on April 4, 1973. Thus, as Judge Dussault 

assumed jurisdiction he was totally unaware of the new provisions. He did not become aware of them until August 20, 

1973. More will be said about these enactments hereinafter. 

On June 21, 1973, after hearing arguments on certain 

motions the court directed respondent Board to hold 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 later on July 

26, 1973, the Board filed motions for (1) extension of time 

to file notice of appeal, (2) request to reopen hearings for 

additional testimony, (3) and for permission to present additional testimony. The court granted the ~oard's request to 

extend time for notice of appeal on August 10, 1973, which 

was followed by petitioner's motion to quash the order extending time, dated August 17, 1973, On August 24, 1973, the court 

denied petitioner'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 the writ of mandate and the 

court on September 18, 1973, ruled that the order of July 13, 

1973, directing that an election be 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 or viewed 
in 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 all parties in the action and the judge, that the Legislature had 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 three miles 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 old Act, a canvas 

from house to house must be conducted as compared to no specified type of canvas under the old Act; that there must be 150 

electors in each of the several wards where no number was 

required under the old law. All of these changes were made 

with an effective date of April 4, 1973, on one Act and July 1, 

1973, on the other. 

From the foregoing, it is seen that Judge Dussault had 

clearly been unaware of the changes in the law and just as 

clearly had been incorrect in ordering an election on 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 final judgment, order, or proceeding for the following 

reasons: * * * (6) any other reason justifying relief from 
the operation of the judgment. * * *" 

Several issues are set forth for our consideration: 

(1) Did the court err in granting an extension of time 

to the defendants in which to appeal its order of August 10, 

1973, and denying respondent ~oard's motion to quash the order 

granting such extension by its order of August 24, 1973? 

(2) Did the lower court err in making its order of 

September 18, 1973, suspending the order directing defendants 

to call a special election as provided for in its order of 

June 21, 1973? 

(3) Did the court err in dismissing the writ of mandate 

heretofore issued as set forth in its order of September 28, 

1973? 

The foregoing issues all involve technical time limits 

and do not embrace a consideration of the correctness of the 

final decision of the district court. In view of the new 

law in effect at the time, to hold an election at that time 

under a petition clearly not valid would 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 a judgment or order within a reasonable time. Certainly under the facts here, within time allowed 

for an appeal, the time was reasonable. The Comissioners moved 

to dismiss the peremptory writ of mandate promptly after being 

advised of the amendments to the controlling statutes. 

The appellant here relies on Federal Land Bk. v. Gallatin 

Co ., 84 Mont. 98, 274 P. 288, for the proposition that the Court 
will not grant relief for mistakes of law. That case was in 

1929, long before the adoption of Rule 60 (b) (6) and is distinguishable in other ways. It does not apply here. 

We have reviewed the issues presented and find no merit. 

Any election held for purposes of incorporation must comply 

with the law and to order an election now under the old petition 

would be meaningless. Accordingly, the order appealed from is 

affirmed and each party will bear their own costs. 

Justice 

WE CONCUR: 

- .. 

Chief Justice