Maxwell v. Terrell

• Decision Date: 01 October 1923
• Citation: 37 Idaho 767,220 P. 411
• Parties: J. C. MAXWELL and A. F. MORRISON, Plaintiffs, v. ROBERT M. TERRELL, Presiding Judge of the Sixth Judicial District of the State of Idaho, in and for the County of Bingham, PETER G. JOHNSON, N.H. THORSTENBERG and F. M. FISHER, Defendants
• Court: Idaho Supreme Court

220 P. 411

37 Idaho 767

J. C. MAXWELL and A. F. MORRISON, Plaintiffs, v. ROBERT M. TERRELL, Presiding Judge of the Sixth Judicial District of the State of Idaho, in and for the County of Bingham, PETER G. JOHNSON, N.H. THORSTENBERG and F. M. FISHER, Defendants

Supreme Court of Idaho

October 1, 1923

WRIT OF PROHIBITION - PETITION FOR ORGANIZATION OF DRAINAGE DISTRICT - WITHDRAWAL OF NAMES - CONFIRMATION OF REPORT OF DRAINAGE COMMISSIONERS-JURISDICTION.

1. Original signers of a petition required to initiate proceedings to form a drainage district have a right to withdraw their names from the petition at any time prior to the determination by the court that the petition contains the signatures of the owners of at least one-fifth of the acreage in the proposed district.

2. Prohibition will not lie to prevent the district court from proceeding to hear and determine the confirmation of the report of drainage commissioners because of a lack of jurisdiction of such court, for the reason that the drainage statutes have provided that the question of jurisdiction may be raised on such hearing and must be determined by that court.

Original proceeding. Application for Writ of Prohibition. Writ denied.

Alternative writ quashed, and writ denied.

Rice &amp Bicknell, M. M. Myers and Hamilton Wright, for Plaintiffs.

A petitioner who signs a petition required by statute for the creation of a drainage district or other similar petition invoking governmental action, judicial or administrative, has the absolute right to withdraw his name at any time before the tribunal created by law to determine the matter has passed on the sufficiency of the petition, unless the right of withdrawal is regulated by statute. (McQueen v Moscow, 28 Idaho 146, 152 P. 799; Territory v. City of Roswell, 16 N.M. 340, 117 P. 846, 35 L. R. A., N. S., 1113; In re Bernalillo County Drainage Dist. No. 1, 25 N.M. 171, 179 P. 233; In re Central Drainage Dist., 134 Wis. 130, 113 N.W. 675; Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L. R. A., N. S., 372; State v. Boyden, 21 S.D. 6, 15 Ann. Cas. 1122, 108 N.W. 897; Davis v. Henderson, 127 Ky. 13, 104 S.W. 1009; Green v. Smith, 111 Iowa 183, 82 N.W. 448; Mack v. Polecat Drainage Dist., 216 Ill. 56, 74 N.E. 691; Sauntman v. Maxwell, 154 Ind. 114, 54 N.E. 397; Hays v. Jones, 27 Ohio St. 218; Wilson v. Borough of Collingswood, 80 N.J.L. 626, 77 A. 1033; State v. Geib, 66 Minn. 266, 68 N.W. 1081; Hoffman v. Nelson, 1 Neb. Unof. 215, 95 N.W. 347; Perkins v. Henderson, 68 Miss. 631, 9 So. 897; Eggleston v. State, 37 Kan. 426, 15 P. 608; Sedalia v. Montgomery, 227 Mo. 1, 88 S.W. 1014, 127 S.W. 50; Newton v. Borough of Emporium, 225 Pa. 17, 73 A. 984; New Orleans v. Stewart, 18 La. Ann. 710; Parish v. Collins, 43 Wash. 392, 86 P. 557; Webster v. Bridgewater, 63 N.H. 296; Irwin v. Mobile, 57 Ala. 6; Armstrong v. Beman, 181 N.C. 11, 105 S.E. 879; Snedeker v. Sims Special Drainage Dist., 124 Ill.App. 380.)

Under our statute it is a jurisdictional requisite to an order declaring a drainage district organized that the district judge at the time of the order acts upon a petition signed by owners of at least one-fifth of the land in the proposed district. (Richmond v. Board, etc., 70 Iowa 627, 26 N.W. 24.)

Where a petitioner requests that his name be withdrawn before action, the district judge has no power to deny the request. ( Ramsey v. District Court, 33 Idaho 296, 193 P. 733.)

Jas. R. Bothwell, Amicus Curiae.

"The withdrawal of signatures from a petition which are required to invoke jurisdiction should be recognized and granted up to the time of the submission of the petition to be acted upon." (Lippincott v. Carpenter, 22 Idaho 675, 127 P. 557; State ex rel. Lang v. Furnish County Commrs., 48 Mont. 28, 134 P. 297, and cases therein cited; Hawley v. City of Butte, 53 Mont. 411, 164 P. 305.)

Thomas & Anderson and Reddoch & Hunter, for Defendants.

A valid petition having been filed and the court having acted thereon to the extent of hearing all of the testimony in chief on behalf of the petitioners, precludes the right of withdrawal. (19 C. J. 645; 9 R. C. L., sec. 23, pp. 635, 636; Seibert v. Lowell, 92 Iowa 507, 61 N.W. 197; Patterson v. Mead, 148 Mich. 659, 112 N.W. 742; Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L. R. A., N. S., 372; Sauntman v. Maxwell, 154 Ind. 114, 54 N.E. 397; C. S., secs. 4495-4498, 4509.)

The right of withdrawal is not absolute after the petition is filed, but is analogous to dismissal and nonsuit and will not be permitted where such dismissal results prejudicially to other petitioners, and this is especially true after the trial is entered upon. (18 C. J. 1152, 1157, 1158; C. S., sec. 6830; Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, 20 Ann. Cas. 1002, and note, 125 S.W. 139; Winslow v. Newlan, 45 Ill. 145; Brinckerhoff v. Bostwick, 99 N.Y. 185, 1 N.E. 663; Manning v. Mercantile Trust Co., 37 Misc. 215, 75 N.Y.S. 168; Holkirk v. Holkirk, 4 Madd. 50, 56 Eng. Reprint, 627; Empire Ranch etc. Co. v. Herrick, 22 Colo. App. 394, 124 P. 748; Bettis v. Schreiber, 31 Minn. 331, 17 N.W. 836.)

WM. E. LEE, J. Budge, C. J., and McCarthy and Dunn, JJ., concur. Justice William A. Lee, did not sit at the hearing of this case nor participate in the opinion.

OPINION

WM. E. LEE, J.

--This is an application for a writ of prohibition against Robert M. Terrell, presiding judge of the sixth judicial district, and the commissioners of said district. The writ is sought to prevent the defendants from proceeding further in the matter of Drainage District No. 1 of Bingham county. The ground upon which the writ is sought is that, although a petition for the organization of said drainage district, signed by the owners of more than one-fifth of the land within the proposed district, was presented to the clerk of the court, before action was taken by the court on the said petition a sufficient number of the petitioners had requested that their names be withdrawn from the petition to reduce the acreage owned by those whose names remained on the petition to less than one-fifth of the area of the proposed district.

On October 7, 1919, a petition was presented to the clerk of the district court of the sixth judicial district, for Bingham county, under the provisions of chapter 179, title 34, of the Idaho Complied Statutes, for the organization of a drainage district. The court thereafter fixed November 1, 1919, for the hearing of the petition, and notice of said hearing was thereupon given; on November 1, 1919, the court continued the hearing on the petition until January 2, 1920, and on that day certain testimony was taken and the hearing was again continued until January 22, 1920. On January 22, 1920, certain persons who had signed the petition appeared and filed affidavits in which they prayed that they be permitted to withdraw their names from the petition. The court permitted certain of the petitioners to withdraw their names, but denied the request of the remainder of those who had filed their affidavits seeking to withdraw their names from the said petition. Thereafter, an order was entered declaring the drainage district duly organized. It is provided by C. S., sec. 4498, that this order had the effect of a lis pendens.

It seems to be admitted that the number of acres owned by those who sought to withdraw their names from the petition, when subtracted from the number of acres owned by all those who signed the petition, reduced the number of acres owned by the signers of the petition who did not seek to withdraw their names therefrom to less than one-fifth of the total acreage within the proposed district. It is contended by the plaintiffs that those who sought to withdraw their names from the original petition had an absolute right to do so at any time before the court had passed upon the question of the sufficiency of the petition. The defendants take the position that such right of withdrawal under the drainage statutes of this state is absolute up to the time of the filing of the petition but not afterwards, and that withdrawal from the petition after the same had been filed could not be had as a matter of right.

This court said, in Olden v. Paxton, 27 Idaho 597, 150 P. 40, in the syllabus:

"Before a writ of prohibition will lie, two contingencies must arise: first, that the tribunal, corporation, board or person is proceeding without or in excess of its jurisdiction; second, that there is not a plain, speedy and adequate remedy in the ordinary course of law."

In order, therefore, to satisfy the first of the "contingencies" mentioned in Olden v. Paxton, supra, it is necessary to determine whether or not, in the absence of an express statute, one who signs a petition to create a drainage district has an absolute right to withdraw his consent to the formation and creation of the drainage district at any time during the hearing to determine the matter of the sufficiency of the petition for the organization of the district.

The decision of this court in McQueen v. Moscow, 28 Idaho 146, 152 P. 799, would seem to be authority for the determination of this question. The petition in that case was for the establishment of an improvement district and for the assessment of the cost of the improvement of street intersections against the property of the district in proportion to benefits, etc. The law in such case provides that the cost of improving intersections shall be paid by the city, but that the council "may, in its discretion," assess the cost of the...