Idol v. . Hanes

Sea well, J.

The questions presented for our decision are: Whether the petitioners had the right to withdraw their names before action by the Board of Commissioners on the question of approval, and whether such withdrawal abated the authority of the Commissioners to'act in the premises. We answer both of these questions in the affirmative.

Since the general type of procedure set up in the statute under review is common all over the United States, as applied to various kinds of improvement, from schools to drainage and to elections upon a multitude

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of subjects, counsel for both sides, ranging a fertile field, bave been able to present to us a great number of decisions,

pro

and

con,

on tbe subject. We do not bave altogether a free choice in tbe matter, since tbe question has been practically settled, in principle at least, in analogous cases.

Shelton v. White,

163 N. C., 90 , 79 S. E., 427 ;

Armstrong v. Beaman,

181 N. C., 11 , 105 S. E., 879 . If we bad, we believe it would be our duty to adopt tbe more reasonable view and tbe one which seems to be more consistent with tbe genius of our people, which, exercised upon more than one occasion, has resolved itself into a policy which recognizes tbe liberty of individual action where no hurt may follow to tbe persons immediately concerned, or to tbe public at large.

It is supposed that second thoughts are apt to be sounder, and this conviction has led courts to consider tbe right of withdrawal favorably, both as a matter of justice to tbe individual, who is entitled to apply bis best judgment to tbe matter in band, and as sound policy in community and public affairs, where tbe establishment of governmental institutions should rest upon mature consideration rather than be mere unnecessary excrescences upon tbe body politic, raised by tbe whim and fancy of a few men.

Tbe facility with which signatures may be obtained to petitions is proverbial, and in other instances tbe amount and character of tbe persuasion is unknown. “What good reason is there why one who has changed bis mind since signing such a petition, and who concludes that either the public good or bis own interest is not in harmony with the petition, may not recede from bis signature before action taken thereon ? Tbe rule which permits a withdrawal at any time before final action upon tbe petition is much more likely to get at tbe real and mature judgment of tbe voters, and it is calculated to discourage a hasty presentation of a petition for signatures without a full disclosure of tbe real merits of tbe question. Circulators of tbe petition can usually avoid sufficient withdrawals to defeat tbe petition by taking care that tbe matter is fully understood by those to whom it is presented for signature.”

County Ct. v. Pogue,

115 Ill. App., 391 (affirmed in

Kinsloe v. Pogue,

12 N. E., 906 ).

A

locus poenitentiae

is usually afforded in most matters where it can be indulged without injury to another’s right. And in considering tbe effect of tbe withdrawal upon other petitions we must remember that tbe defeat of an aspiration is not tbe destruction of a right.

Tbe plaintiff in an action may, as a matter of right, take a nonsuit if bis opponent has not asked for affirmative relief, and some courts, with reason we think, bave applied tbe analogy to cases of this sort:

In re Central Drainage District Cush, et al., v. Kruschke, et al.,

113 N. W., 675 ;

St. Lawrence Independent School District v. Board of Education,

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235 N. W., 697 ;

Roslyn v. Board of Education,

173 N. W., 461 ;

Webster v. Bridgewater,

63 N. H., 296. It would be remarkable if we attached more importance to a petition than to the summons and complaint in a civil action.

The signer of a petition has made no commitment to his co-petitioners or to the administrative body. In this respect it has been held that his action in signing the petition is analogous to an offer which stands open until accepted: 44 O. J., 239, citing

Hay v. Cincinnati,

9 OhNP;

Andrew v. Auditor,

5 OhNP, 123;

White v. Buffalo,

61 Barb. (N. Y.), 415;

Wilkinson v. Lincoln

(Neb.), 181 N.

W.,

161 ;

Waco v. Chamberlain

(Tex.), 45 S.

W.,

191 .

Furthermore, while the petitioners address the board in behalf of a public enterprise, the individual petitioner is dealing with a prospective burden upon his own pocketbook, or a lien upon his property — a very substantial right — and his privilege to withdraw before injury to others should be judged of in that relation.

There is, of course, some significance respecting the extent of public interest implied in the statute by the requirement of 51% of the resident freeholders, but this is not by any means an election upon the proposal as determining the rights of the parties

inter sese,

or as fixing its status before the board. The election is one of the individual and remains so until action is taken. Yiewed as a guaranty of the worth-whileness of instigating the project, the statute might as well have required the signature of only 25% of the resident freeholders — a percentage rather frequently employed in the calling of local elections. If the petition is considered as conveying a minimum expression of public interest such as would justify further action by the authorities — in the nature of an assurance to the law — then, unless it be regarded as a mere device for the entrapment of Lady Progress, that assurance should carry through until the law has taken stock of the demand.

From considerations of public policy and individual right, we think the better rule is that the individual petitioner may, as of right, withdraw his name from the petition at any time before final action thereupon, and this rule we affirm. It should satisfy any reasonable requirement as to constancy of purpose, to be expected of those who deal with the courts and administrative bodies.

The withdrawal of these petitioners, conceded in the stipulation to reduce the number to less than 51% of the resident freeholders, was fatal to the jurisdiction of the defendant Board of County Commissioners, and the judgment of the Superior Court so holding must be affirmed.

Tarboro v. Forbes,

185 N. C., 59 , 116 S. E., 81 ;

Armstrong v. Beaman, supra; Charlotte v. Brown,

165 N. C., 435 , 81 S. E., 611 ;

Shelton v. White, supra;

McQuillin’s Municipal Corp., 1921 Supp., sec. 1858.

Affirmed.