Idol v. Hanes

• Decision Date: 31 May 1941
• Docket Number: 744.
• Citation: 14 S.E.2d 801,219 N.C. 723
• Parties: IDOL et al. v. HANES et al.
• Court: North Carolina Supreme Court

14 S.E.2d 801

219 N.C. 723

IDOL et al. v. HANES et al.

No. 744.

Supreme Court of North Carolina

May 31, 1941

This was a proceeding brought by certain petitioners before the Board of Commissioners of Forsyth County to secure their approval to the creation of a sanitary district trader the provisions of Chapter 100, Public Laws of 1927, Michie's Code, Art. 4A, Sections 7077(a) et seq., and to have further proceedings thereupon looking to the establishment of the district. The act, as it relates to the powers and duties of the Board of County Commissioners, provides:

"7077(c). Petition from freeholders.-- Fifty one per cent or more of the resident freeholders within the proposed district may petition the board of county commissioners of the county in which all or the major portion of the proposed district is located setting forth the boundaries of the proposed sanitary district and the objects it is proposed to accomplish. Upon receipt of such petition the board of county commissioners if the same is approved by them, shall, through its chairman transmit the petition to the State Board of Health requesting that the proposed sanitary district be created. Provided however, that the board of county commissioners before passing upon said petition shall hold a public hearing upon the same and shall give prior notice of such hearing by advertising to be made by posting a notice at the court-house door of their county and also by publication in a newspaper published in said county at least once a week for four successive weeks; and in the event such hearing is to be before a joint meeting of the boards of county commissioners of more than one county, or in the event the land to be affected lies in more than one county, then in either of such events a like publication of notice shall be made and given in each of said counties."

The petition, containing the required 51% of the resident freeholders, was filed with the Board of Commissioners and advertisement was made in accordance with the law. But before any action toward approval was taken by the Commissioners and before the hearing was had, a number of signers signified their desire to withdraw as petitioners and have their names stricken from the petition.

It is stipulated in the case on appeal:

"9. That the original petition was signed by 51%, or more, of the resident freeholders of the proposed Sanitary District when it was filed with the Board of County Commissioners of Forsyth County on July 1, 1940.

"10. That if the persons who requested that their names be withdrawn from the petition, as hereinbefore set out, had the right to withdraw and could not be counted as signers by the defendant County Commissioners at their meeting on September 3, 1940, then the petition did not contain 51% of the resident freeholders of the proposed sanitary district."

The Board of Commissioners, at an adjourned hearing, proceeded to approve the petition, notwithstanding the requested withdrawals, and prepared to forward such approval to the State Board of Health for further action toward establishment of the district, under the provisions of the law. Certain of the petitioners who had signified their withdrawal objected, and, their protests proving unavailing, proceeded to bring this suit to enjoin the defendant Commissioners from any further action in the proceeding, and obtained a temporary restraining order. At the hearing before Judge Pless, at November Term, 1940, of Forsyth Superior Court, the order was made permanent and defendants, including those who in the meantime were permitted to intervene, appealed to this court.

Fred S. Hutchins and H. Bryce Parker, both of Winston-Salem, for appellants.

Elledge & Wells, of Winston-Salem, for appellees.

SEAWELL Justice.

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 of subjects, counsel for both sides, ranging a fertile field, have been able to present to us a great number of decisions, pro and con, on the subject. We do not have altogether a free choice in the matter, since the 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 had, we believe it would be our duty to adopt the more reasonable view and the one which seems to be more consistent with the genius of our people, which, exercised upon more than one occasion, has resolved itself...