88 Kan. 603 | Kan. | 1913
The opinion of the court was delivered by
This was an unsuccessful attempt to obtain an order en j oining the issuance of school district bonds. The appellant’s attack on the execution and sale of the bonds proposed to be issued was based upon the claim that the initial steps had not been regularly taken. The district adjoins the city of Topeka, has a property valuation of $447,850 and contains about 213 qualified electors. A movement to secure the building of a new schoolhouse to cost about $10,000 was started. Under the law (Gen. Stat. 1909, § 7631), the issue of bonds was limited to one and one-half' per cent of the taxable property of the district, unless permission to vote a larger sum was obtained from the Board of School Fund Commissioners of the stata By a recent act of the legislature (Laws 1911, ch. 257) that board is empowered to grant to a city or school district the authority to issue bonds for the erection of'
In this proceeding an attack was made upon the sufficiency of the petition to the school district board, in which that board was asked to apply to the state board for permission to issue bonds in excess of that allowed under the general limitation. First, it is claimed that it was not legally signed by the requisite number of electors. In chapter 257 of the Laws of 1911 it is provided that the petition to the school district board shall be signed by at least one-half of the electors. A petition was presented to that board which on its face appeared to be sufficient. It was presented and' allowed without challenge, of its sufficiency or opposition of any kind.
There is an attack on the petition because a number of the signatures were not autographic. Some of the names attached to the petition were signed by the husband or wife or some other agent of the petitioner, and were signed in the presence of the petitioner or by his verbal authority. The statute does not require that each petitioner shall perform the physical act of attaching his name to the petition, and in the absence of such a requirement no reason is seen why a person may not cause his name to be attached to such a petition by another. Indeed, we have a statute, which contemplates that the names of persons will be signed to petitions addressed to officers, courts and legislatures by others, and therein it is made an offense to do so without. authority from the person whose name is signed. (Gen. Stat. 1909, § 2849.) Of coursé, those
After final action upon the petition had been taken by the school district board, and the application was pending before the state board, an attempt was made, as we have seen, to withdraw and add names to the petition, but it was not then open for withdrawals and additions. The initiatory step is taken by the electors and their petition is addressed to the school district board, and not to the state board. The action of the state board is invoked by the application of the school district board, and notice of the filing of that application is required. The state board does not base its finding and judgment on the petition to the school district board, but it fixes a day for a hearing, and upon the evidence then offered, under rules which it prescribes, the application is either granted or denied. The purpose of the petition is to move the school district board to make the application to the state board, and that purpose had been subserved when the prayer of the petition was granted and the application made. At that time no petitioner had added or withdrawn his name
In regard to the time within which a petitioner who has changed his mind may withdraw his name from a petition, there is a difference of judicial opinion. In some cases it has been held that withdrawals may only be made while a petition is in circulation and before it has been filed or presented for action. Some hold that withdrawals may be made until the petition has been filed and jurisdiction has attached, but that withdrawals will not be allowed which would defeat jurisdiction. A greater number of the authorities apply a more liberal rule, which permits a petitioner to withdraw his name at any time before final action is taken upon the petition by the officer, board or tribunal to which it is presented. In a number of the cases the right of withdrawal is regulated by statutory enactment, and consequently there are cases which fix the termination of that right at a point intervening between the presentation of the petition and final action thereon. (Grinnell v. Adams, 34 Ohio St. 44; Seibert v. Lovell, 92 Iowa, 507, 61 N. W. 197; Orcutt v. Reingardt, 46 N. J. Law, 337; Bordwell v. Dills, 70 Ark. 175, 66 S. W. 646; State ex rel. Hawley v. Board of Supervisors of Polk County and another, 88 Wis. 355, 60 N. W. 266; Noble et al. v. the City of Vincennes, 42 Ind. 125; Webster v. Bridgewater, 63 N. H. 296; Littell v. Board of Supervisors, 198 Ill. 205, 65 N. E..78; Snedeker v. Matter Drainage District, 124 Ill. App. 380.)
In a case note to Sim et al. v. Rosholt, 16 N. Dak. 77, 112 N. W. 50, in 11 L. R. A., n. s., 372, a great number of authorities on the subject are collected.
In The State ex rel. v. Eggleston, 34 Kan. 714, 10 Pac. 3, a question of the right to withdraw names from a petition for the removal of a county seat was considered, and it was said to be the duty of the board of county commissioners to strike from the petition the
There is a contention, too, that the petition was defective because it did not ask the school district board to apply for permission to issue a definite amount of bonds, and also that the permission itself, which was granted by the state board, did not state a definite amount. As we have seen, the petitioners used the statutory language and asked for the additional fifty per cent authorized by the act of 1911. It is said that in asking for an excess of the amount “that may be voted for by the laws now in force” they, in eifect, asked for an issue of $15,000; that is, fifty per cent in excess of the amount authorized under both the general and the exceptional limitations. It is reasonably clear from the use of the language of the act of 1911 that they intended that the application should be made for fifty per cent more than could be voted under the general limitation which was in force when the latter statute was enacted. The natural interpretation of the petition, as well as the order of the state board, was that the request for the permission, as well as the permission itself, fixed the maximum amount authorized by the act of 1911. Without that act, only $6700 could have been voted by the appellee, but under its
There are some other criticisms of the proceedings, but in all the preliminary steps there appears to have been a substantial compliance with the statutory requirements, and, therefore, the judgment of the district court will be affirmed.