# Strauss v. Board of Supervisors

> California Court of Appeal · May 20, 1960 · 181 Cal. App. 2d 133

URL: https://www.frixlaw.com/law-library/cases/9734930

## Case

- **Full name:** LUCEIL STRAUSS Et Al., Appellants, v. BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES, Respondent
- **Court:** California Court of Appeal
- **Decided:** May 20, 1960
- **Citations:** 181 Cal. App. 2d 133; 5 Cal. Rptr. 294; 1960 Cal. App. LEXIS 1970
- **Precedential status:** Published
- **Opinion:** Dissent by Fox
- **Judges:** Kincaid, Fox
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734930

## Opinion text

FOX, P. J.
I dissent.
The majority opinion draws no factual distinction between the “petition” cases and “protest” eases, such as the instant proceeding. Yet this factual distinction is the determining consideration in this controversy. A valid petition, when filed, is an integrated document containing the names of a sufficient number of qualified persons to confer jurisdiction on a designated public body to commence the proper proceedings. Thus a petition initiates jurisdiction. On the other hand, a protest is the act of a single person, filed at any time within a statutory protest period. In and of itself, this single act has no jurisdictional significance. Not until the time for filing has expired and the board determines the numerical sufficiency of all the protests to defeat its jurisdiction do the individual *143 protests take on a legal significance. (Board of Education of Putnam County v. Board of Education of Hartsburg, 112 Ohio St. 108 [ 146 N.E. 812 ].) Thus the controlling date with relation to protests is the final day for filing, not the day upon which the protest is actually filed, unless the two dates coincide. It is not until such final date for filing that the protest list is complete. (See Board of Education of Putnam County v. Board of Education of Hartsburg, supra.) Likewise, it is not until after the final filing date that the board acts to determine the sufficiency of the protest. Under these circumstances, the analogy is clear ■ i.e., the filing of the individual protest has no more significance than the placing of a name on a petition before that petition is filed. It is not until the final filing date is past that the protest list is complete as an integrated whole. In effect, the final filing date is the “filing date” for the completed list of protests. Thus, until such date, names should be allowed to be added and withdrawn at will. (State ex rel. Tegt v. Circuit Court, 255 Wis. 501 [ 39 N.W.2d 450 ] ; Wilson v. Borough of Collingswood, 80 N.J.L. 626 [ 77 A. 1033 ].)
There is no valid purpose to be served by refusing to allow the withdrawal of protests before the final filing date. No official action will have been taken relative to the protests other than filing them prior to that time. Thus, no detrimental effect upon any governmental agency can occur. On the other hand, no valid reason appears why a protestant should not be allowed to withdraw a protest hurriedly made, on inadequate facts or upon an erroneous belief. To refuse to allow the withdrawal of an ill-advised protest prior to the time that such protest could have any legal effect, is to defeat the very purposes of the law allowing protests. The obvious purpose of protests is to assure that actions will not be taken against the will of the majority. If a protestant changes his mind, the proposed action will no longer be against his will, yet to refuse to allow withdrawal is to irrevocably fix his voice in the proceedings. Until such time as the protest list is complete, there can be no justification for such an arbitrary rule.
Therefore, the “petition” cases relied upon by the majority do not meet the issues here presented. Those cases are based upon the theory that a petition, once filed, creates the jurisdiction of the board or body and sets in motion the .machinery of government. Under those circumstances, the effect of withdrawals after filing would be highly detrimental to the efficient functioning of the public bodies involved and withdrawals *144 after the filing of a petition may properly be disallowed. However, as above pointed out, no comparable situation exists in this case. I would reverse the judgment.
Appellants’ petition for a hearing by the Supreme Court . was denied July 12, 1960. Peters, J., was of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734930. Public record. Not legal advice.