237 Pa. 368 | Pa. | 1912
Opinion by
The right of the fifteen original signers of the petition to withdraw is one of the questions raised by this appeal. As a general rule, parties who institute a proceeding have the right to discontinue it, subject, of course, to the order of court as to costs and proper charges. If all the original signers had joined in a petition asking to withdraw their names, or to discontinue the proceeding, before the hearing, or prior to the taking of testimony, and before the questions involved were considered, or determined, the right to do so, could not be seriously questioned. Parties are not bound to pursue an action, or to press litigation, if, upon reflection, they conclude it is unwise to proceed further. If, therefore, in the present case, all the signers, had asked leave to withdraw their names and discontinue the proceeding, it would have been the duty of the court to respect their wishes by dismissing
1. One who has signed a petition calling for the action of a judicial, legislative, or executive office or body, may withdraw his name as of right before the jurisdiction of that tribunal, body or officer, has attached. In legislative and municipal bodies, and before officers, or boards, whose duty involves the power to decide, and to exercise judgment, or discretion, jurisdiction cannot be said to attach until formal action has been taken on the subject matter of the petition.
2. A petitioner does not have the right per se to withdraw his name after jurisdiction has attached, and in such cases never has the right to withdraw without leave of court.
3. If a petitioner has been induced to sign by misrepresentations, he may withdraw his name even after jurisdiction has attached, but this must be done with leave of court, or other body or tribunal having jurisdiction of the proceeding.
4. In those cases, in which jurisdiction has attached, the fact that several petitioners desire to withdraw their names, should be taken into consideration by the court; and, if, a sufficient number desire to withdraw, the court would not only be warranted in dismissing the petition, but.in many instances should do so, on the ground, that under such circumstances the power of the court should not be asserted against the real wishes.
The petition asking that a new independent district be created was presented June 20, 1911, before the old district by the terms of the act was abolished. It is contended that this was premature because a new district could not be created out of the very same territory embraced in the old district while that district was still in existence. We think this position is well taken. Section 108, of the School Code (Act of May 18, 1911, P. L. 309), provides that all existing independent districts shall be abolished from and after the beginning of the school year fixed by the act. In districts of the class to which the one in question belongs, the school year begins on the first Monday of July, and the old district was not abolished until that time. Section 101 provides that each city, incorporated town, borough or township, now existing, or hereafter created, shall constitute a separate school district. Independent districts are not included in the enumeration, and it is too plain for argument, that the intention of the legislature was to abolish existing independent districts at the time mentioned in the act. The act so declares in
Decree reversed at the cost of appellees.