164 P. 305 | Mont. | 1917
delivered the opinion of the court.
The city of Butte undertook to create a special improvement district for paving and other purposes. Within the time allowed by statute a protest was filed with the city clerk by persons owning more than 50 per cent of the real estate included within the proposed district. On the day following and within the same period certain of the persons who signed the protest notified the council in writing that they withdrew their objections to the creation of the district. When the council came to consider the
The statutes governing the creation of special improvement districts in cities and towns (Chap. 89, Laws 1913, as amended by Chap. 142, Laws 1915), provide for a resolution by the city council expressing its intention to‘create the district in contemplation and for notice to everyone having property within the proposed district. Within fifteen days after the first publication of the notice, any owner of property liable to assessment for the work may make protest in writing and file such protest with the city clerk. At the next regular meeting of the council after the expiration of the time for filing protests the council shall hear and pass upon all protests. If no protests are filed, or if protests are filed which are found to be insufficient or. are overruled or denied, “immediately thereupon the city council shall be deemed to have acquired jurisdiction to order the proposed improvement. ’ ’ There is not any provision in the statute which in terms, authorizes one who has signed a protest to withdraw therefrom, but the legislature has seen fit to refer the
Our statute is somewhat peculiar, in that jurisdiction to proceed with the improvement is not conferred upon the city until it has first determined that a sufficient protest is not before it. The right to petition implies the right to withdraw from a petition (State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297; State ex rel. Fadness v. Eie, ante, p. 138, 162 Pac. 164); and since it is the obvious purpose of this legislation to permit the owners of a majority of the property affected to determine the propriety of the improvement, that purpose is best subserved by a liberal interpretation of the statute in favor of those directly interested, 'if they act within the time fixed by the statute or acquiesce for that period. These views are supported by the better reasoning and by the decided weight of authority. The subject is treated thoroughly and the decided cases reviewed in Sedalia v. Montgomery, 227 Mo. 1, 127 S. W. 50.
Neither do these views conflict in the least with the authorities which hold that, if the statute itself confers jurisdiction upon the council which is subject to be defeated by filing a protest signed by the owners of a majority of the property affected, then the withdrawal of names from such a protest sufficient in the first instance to oust jurisdiction cannot have the effect of
The judgment is affirmed.
'Affirmed.