155 Iowa 149 | Iowa | 1912
The questions raised may be disposed of in the order mentioned, and first concerning the so-called “withdrawals of withdrawals.” The right of an elector who has signed his name to the general statement of consent to withdraw it therefrom was settled in Green v. Smith, 111 Iowa, 183, and the briefs filed demonstrate the correctness of that decision. In Scott v. Naacke, 144 Iowa, 164, we held that the general statement of consent might not be amended, after filing, by adding other names thereto, saying:
The filing, notice, and public canvass of such statements is for the protection of the public and the statute relating thereto should be literally construed. If additional statements or petitions are allowed after the original is
In Lemon v. Drexel, 152 Iowa, 144, the court said, with reference to withdrawals of withdrawals: “It is also claimed in this connection that the withdrawals had the effect of reinstating the names upon the original statement of consent. The case last cited (Scott v. Naacke) disposes of this proposition as we understand it.” Appellant contends that the point was not involved in that case, but it was distinctly made by the appellee therein, and the petition for rehearing, in which the authorities now relied on were cited, was subsequently overruled. It was there held that “no names can be added to the statement after it is filed.” This was in harmony with what was said in Loomis v. Bailey, 45 Iowa, 400. There the statute, relating to the removal of county seats, provided that where the names appeared, both upon the petition for the change and remonstrance against it, it should be counted only on the remonstrance, and the court said:
The wisdom of so restricting the power of the supervisors will plainly appear when it is considered to what extent of investigation, and the uncertainty thereof, they might be led. If remonstrants, upon change of their wishes, may require the effect of papers upon which the supervisors are to act to be correspondingly changed, so may petitioners. If one change be made, two may, and upon another change of mind the petitioners and remonstrants
The filing of the withdrawals in the language quoted, and their presentation to the board of supervisors, had the effect of removing the signers’ names from the statement of consent. To withdraw his name therefrom, according to the lexicographers, is to take it away or remove it from the statement. Whether he do so was not optional with the board of supervisors, but the result of the independent act of the elector in signing such withdrawal and causing same to be filed with the county auditor and the board before the statement had been acted upon. Having withdrawn his signature from the statement of consent, he could not reinstate the same thereon, for this would be equivalent to signing his name again and section 2452 of the Code enacts that: “No name shall be counted that was not signed within thirty days prior to the filing of said statement of general consent.”
Appellee seems to rely upon State v. Geib, 66 Minn. 266 (68 N. W. 1081), and Hoffman v. Nelson, 1 Neb. (Unof.), 215 (95 N. W. 347). In the former, persons who had signed a petition for the removal of county seat subsequently signed an instrument withdrawing their names from the petition, and designating a person as an attorney in fact to cancel their names from such petition, and instructing him to do so. Before the convening of the board of supervisors, the same person executed another paper, designating the relator as attorney in fact to act for them, revoking the former instrument, and demanding that their
After the petition is filed with the auditor, the right of a petitioner to consúmate a withdrawal of his name therefrom is in abeyance until the board meets in open session to consider the petition. It follows that neither the execution of the withdrawals and their delivery to the attorneys in fact' therein named, nor their presentation to the auditor, and the demand for the opportunity to 'strike the names of the persons executing the withdrawals from the petition, effected a withdrawal of such names. Until the withdrawals and the powers of attorney were presented to the board and acted upon, they were in fieri; and the persons executing the instruments could recall the withdrawals, and revoke the authority of their attorney to give effect to the withdrawals, by appearing before the board and causing their names to be erased from the petition. While the withdrawal remained in the possession of the attorney, and before the board acted upon it, such possession was that of the petitioner, and it was subject to his absolute control. ■ When the attorney presented the withdrawal with his authority to make it effectual, he was met with a complete and absolute revocation of his authority and a recall of the withdrawal. The poison and antidote were concurrently administered. Both the attorney and the board had in each case due notice that the withdrawal had been recalled and the power of attorney revoked before any action had thereon; hence the erasure from the petition of the names of the one hundred and forty-four electors here in question was unauthorized and void.
It will be observed that the decision is in accordance with what we have said. Of course, withdrawals, if not presented to the board of supervisors, can not prove effective, and all that was held was that presentation thereof, against the wishes and demand of those signing the same,
In Hoffman v. Nelson, supra, the commissioners could not see any objection to the citizen changing his mind a second time as to the expediency of having an election, declining to follow State v. Geib, supra. There is every reason for recognizing the right of the elector to change his sentiments on any subject as often as he pleases, to oscillate, like a shuttlecock, from side to side, so long as he withholds these from the record. But when the statement of consent, with his name thereon, as exacted by statute, is filed with the auditor, it must remain, unless he withdraw; and when, by his own voluntary act, he does remove it therefrom by filing his withdrawal and presenting this, eo instante, to the board of supervisors, it removes his name from consideration as a signer of the general statement of consent, and there is no way to restore it; for that must be signed within thirty days previous to the filing thereof. To hold otherwise would require a construction of the law which would permit the citizen to trifle in dealing with public officers and in the discharge of an important public duty, and' encourage unseemly controversies over individual action which should be taken after mature deliberation, and in the exercise of unbiased judgment. If he may change a second time, there is no ground for denying him the third or any number of changes, changing so often that the tribunal to decide may experience difficulty in observing him on one side of the proposition long enough to be counted. Neither official nor other business is or should be transacted in that way. Having signed the general statement of consent, he may subsequently reconsider his action and withdraw his name therefrom by
The evidence also disclosed that one Beadle, whose affidavit was attached to a -statement purporting to be signed by sixty or seventy persons, had been convicted of gambling in 1903 and twice before that. While on the witness stand he testified that he had been engaged in operating a saloon
The judgment is reversed.