No. 14623 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA on the relation of 

LYNN MILLER, Individually and as Chairman of the Tax Relief Association, 

Plaintiffs and Relators, 

FRANK MURRAY, Montana Secretary of State, 

and the County Clerk and Recorders, et al., 

Respondents and Defendants. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Relators: 

Petaja, Jacques & Smoyer, Helena, Montana 

Charles Petaja argued, Helena, Montana 

Leo Gallagher argued, Helena, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath argued, Assistant Attorney General, 

Helena, Montana 

Richard P. Heinz, County Attorney, argued, Polson, 

Montana 

Patrick Flaherty, County Attorney, Boulder, Montana 

Mark Murphy, Deputy County Attorney, argued, Boulder, 

Montana 

Charles Graveley, County Attorney, Helena, Montana 

Denzil R. Young, County Attorney, Baker, Montana 

John Flynn, County Attorney, Townsend, Montana 

Submitted: September 20, 1979 

Decided: 8CT 2 lgm 

Filed: .3%T 2 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Lynn Miller appeals from an order of the Lewis and 

Clark County District Court, denying a request for a 

declaratory judgment interpreting section 13-27-103, MCA, 

and instructing the respondents to certify and accept 

certain signatures which appear on petitions supporting 

relators' proposed initiative. Miller also appeals from 

the same order granting respondents' motion to quash 

relators' alternative request for a writ of mandate compelling 

the respondents to certify and accept the signatures so that 

the initiative could be placed on the ballot at the next 

general election. 

Relators, Lynn Miller is chairman of the Tax Relief 

Association, a group organized for the purpose of placing a 

constitutional initiative expanding the state gambling laws 

on the 1978 general election ballot. 

Petitions for the purpose of collecting the necessary 

31,672 signatures were duly approved by the Secretary of 

State as to form and style prior to June 30, 1978, and 

thereafter circulated among the electorate by members and 

supporters of the Association. The signed petitions were 

then turned into the respective County Clerk and Recorders 

who reviewed the submitted signatures and certified to the 

Secretary of State the signatures which they believed were 

qualified electors of the State by July 14, 1978. Shortly 

thereafter, the Secretary of State determined the petition 

drive had fallen short by 2,904 signatures. 

On August 15, 1978, the Association filed suit alleging 

approximately 3,500 signatures were wrongfully disqualified. 

Specifically, relators requested a declaratory judgment 

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declaring: 

(1) that the signatures on an initiative 

petition need not be identical to satisfy the 

statutory requirement of section 37-116, R.C.M. 

1947, that requires the petition be signed in 

substantially the same manner as on the voter 

registry card; 

(2) that the address given by a petition signer 

need not be identical to that found on the voter 

registry card, so long as the address is still 

within the county and legislative district in 

which the petition is submitted for certification; 

and 

(3) that certain signatures rejected by the Clerks 

and Recorders be declared valid, and direct the 

Montana Secretary of State to accept them and to 

certify the initiative as a ballot issue for the 

next general election. 

In the alternative, appellants sought a writ of mandate 

directing: 

(1) the County Clerk and Recorders to recount 

the signatures on the petitions filed in the 

respective counties and to certify those 

signatures which are substantially similar to 

the signatures on the voter registry cards or 

to show cause why; 

(2) to certify those signatures which were 

accompanied by an address not identical to that 

on the voter registry cards but which are still 

within the county and legislative district in 

which the petition was submitted for certification 

or to show cause why; 

(3) the Montana Secretary of State to accept the 

recertified petitions and to certify the initiative 

as a ballot issue in the next general election if the 

required number of signatures have been secured or 

to show cause why. 

An alternative writ of mandate was issued by the District 

Court. A show cause hearing was held on August 29, 1978, 

at which time arguments were heard and motions were made 

to dismiss the complaint and quash the writ of mandate. 

The District Court by an order entered September 5, 1978, 

denied the declaratory relief and writ of mandate and granted 

respondents' motion to quash. The Court based its denial 

of declaratory relief on the reasons that the controversy 

would become moot before a factual determination could be 
made and that it is the function of the legislature and 

not the judiciary to resolve the question of petition 

signature qualifications. The denial of mandate relief 

was for the reason that in carrying out their duties, the 

County Clerks must exercise their discretion to determine 

whether a petition is signed in substantially the same 

manner as the voter registry card and mandate will not issue 

to control discretion. We affirm. 

Relators present three issues for our review: 

(1) Did the District Court err in refusing to issue a 

declaratory judgment? 

(2) Did the District Court err in refusing to issue 

the writ of mandate as asked? 

(3) Is it necessary for the Supreme Court to enter a 

declaratory judgment? 

We find that the first issue in this case is controlled 

by the last issue which will be addressed first and the mandate 

issue discussed last. This Court will not pass upon moot 

questions. State v. Thompson (1978) , Mont . , 576 

P.2d 1105, 35 St.Rep. 343; Bell v. State Highway Commission 

(1954), 128 Mont 122, 271 P.2d 425; Adkins v. City of Livingston 

(1948), 121 Mont. 528, 194 P.2d 238. A question which is 

moot is not a proper subject for a declaratory judgment. See 

Chovanak v. Mathews (1948), 120 Mont. 520, 188 P.2d 582. A 

moot question is one which existed once but because of an 

event or happening, it has ceased to exist and no longer 

presents an actual controversy. In the present case, the 

Forty-Sixth Montana Legislature has significantly modified 

the statute on which relators depend. See Chapter 494, 

Laws of 1979. As a result, it would be superfluous for this 

Court to issue a declaratory judgment as requested by relators. 

The controversy cannot be repeated because the law has been 

decisively changed. 

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Not only has the specific statute in controversy been 

changed, but so have the initiative procedures that will 

be used for the ballot in 1980. Under the new law, the 

procedures to be used to petition for an initiative to be 

on an election ballot differ greatly from the process used 

for the 1978 elections. See Chapter 400, Laws of 1979. 

Even though a sufficient number of valid signatures may in 

fact exist, there was not sufficient time available to qualify 

the matter for the 1978 ballot and we find no means of legal 

or equitable relief is now available. 

For these reasons, this Court finds no basis to issue 

the declaratory relief sought by the relators. 

A writ of mandate may be issued "to compel the performance 

of an act which the law specially enjoins - as - a duty 

resulting from an office . . . " (Emphasis added. ) Section 

27-26-102(1), MCA. "Mandamus is an extraordinary remedy 

which lies to compel only a 'clear legal duty.'" State ex 

rel., State Tax, Etc. v. Montana Bd. (1979), - Mont . I 

593 P.2d 747, 749, 36 St.Rep. 849, 851. The difficulty here 

is that there was not a legal duty on the part of the 

Secretary of State under section 13-27-304, MCA, to accept 

any signatures which were not forwarded by the County Clerk 

and Recorders and verified as registered electors. Likewise, 

the Clerk and Recorders do not have a duty to accept and 

certify signatures submitted to them as a matter of course. 

The Clerk and Recorders are only required to certify to the 

Secretary of State the number of signatures they find to be 

valid. 

In order to decide if a signature may be counted, the 

Clerk and Recorder must determine if the signatures on the 

petition are "signed in substantially the same manner" as 

the signatures on the voter registry cards. Section 13-27- 

103, MCA. To satisfy this statutory requirement, the individual 

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Clerk and Recorders must exercise discretion. Mandate 

does not lie to control discretion, absent an abuse thereof. 

Burgess v. Softich (1975), 167 Mont. 70, 535 P.2d 178. 

Addresses aid the Clerk and Recorders in the certification 

process. The only purpose of the address is to aid in the 

identification of the signer so that the Clerk can then locate 

the signer's voter registration for the purpose of certification. State v. Board of Examiners (1952), 125 Mont. 419, 

239 P.2d 283. However, if it is the belief of the individual 

Clerk and Recorder that the signature differs from that on 

the voter registry card, then the signature is not valid for 

this means of signature certification. This function of 

the Clerk and Recorder is discretionary, and we hold that 

the District Court did not err in refusing to issue a writ 

of mandate as requested by the relators. 

The order of the District Court is affirmed. 

Justice v 

We Concur: 

Chief Justice 

tices