16 N.M. 340 | N.M. | 1911
OPINION OF THE COURT.
(After stating the facts as above.) In the brief for the relator, it is claimed that in the return of the respondents to the alternative writ inconsistent defenses were set up, and that therefore the peremptory writ was properly awarded. In the relator's motion to award the peremptory writ, that ground is not specified, and it ’is not therefore a question which was decided by the trial court, and is not here for review.
There remain but two questions between the parties for determination by this court, or one question with two branches, namely, whether an elector who signed the petition in question, and whoso signature was on it when it was received by the mayor and council, had the right afterwards to withdraw from the petition, or, as stated in the briefs, “withdraw his name,” so as to prevent it from being counted to make up the number requisite, by section 2 of the act referred to, to secure the calling of an election; and whether, if such a right exists, effectual withdrawals were made in this instance.
As to the latter branch of the question, it is contended that the committee to which the petition was referred had no power to accept or make such withdrawals. Undoubtedly it had not the power to accept withdrawals as a finalit]-, and it did not apparently attempt that, as the report does not state that leave to withdraw had been granted, or that the names of persons not electors had been stricken out, but, in effect, recommended that the mayor and council “disregard” such names and deny the petition. While the report does not recite that those names were presented with it to the nniyor and council, it woud seem that such must have been the case, since the names of both classes are fully set forth in the return to the alternative writ of mandamus. It is true that in the return it. is, in substance, stated, that the signatures “were withdrawn by the committee at the request and upon the order and authority of the persons so withdrawing,” but that is more than, the report itself states, and, taking the two together, the meaning appears to be that those persons had authorized the withdrawal of their names, and that by their report the committee undertook to execute that power. We are of the opinion that by the acceptance and adoption of the report it became the action of the mayor and council in all respects as fully as if they had acted without the help of a committee of their members. In the Minnesota cases cited for the appellee, the petition was in the hands of an independent officer when the withdrawals were attempted. and not, as in this case, in the hands of a committee, which was but an instrument of the mayor and council.
That brings us to the question when the right of withdrawal from such a petition expires. The appellee’s contention is that it ends when jurisdiction of the petition is obtained by the body to which the law requires its presentation; the. appellants’, that it continues until final action on it by that body. In support of the former view, the attention of the court is called to what is termed the “imperative” nature of the statute, which provides that “upon a petition of not less than five hundred electors, residents of the city or town * * * the mayor shall, by proclamation, sidnnit the question,” etc. There was, counsel for the appellee say, such a petition submitted to the mayor and city council of Koswell, and it thereupon became the duty of the mayor to make proclamation under the statute. It finally appeared, according to the return of the respondents, and counsel for the appellee concede, that of the 584 signers of the petition, whose names it bore when presented, 58 were not qualified to petition under the statute. But how would it be known by the mayor and council in advance of investigation that the number would not be as much as 85, which would have reduced the number of qualified signers below 500? And, obviously, the only practicable way to ascertain whether each of 584 signers was a resident elector of Boswell was through a committee, or some other person or persons acting for the mayor and council. However done, the work would require time; and in the time taken by the committee which in the present instance made the investigation, and which cannot be said to have been unreasonably long, 87 of the signers withdrew from the petition, if they had the power so to do.
Various objections against the validity of their action-are urged in behalf of the appellee. It is said, for instance, that the right to withdraw under such circumstances would, in its exercise, be subject to great abuses. That is no doubt true; but it is probably true of ail human devices for government which ever have been or ever will be put in operation. It is true of the right of petition itself, as it is a matter of common knowledge that people will sign petitions from caprice, good nature, thoughtlessness, malice, fear of injurious consequences to themselves if they refuse, expectation of favor or reward if they consent, as well as from more exalted and patriotic motives. Often they “sign in haste and repent at leisure.” That may have been the case with the 87 who signified their desire to withdraw from the petition in question. The government of cities by commission is comparatively new. While it ma}»- be an improvement on previous systems, it cannot, in the very nature of things, prove to lie a 'panacea for all the ills which affect the administration 'ff municipal affairs through the countrv. It will doubtless have defects peculiar to itself, and, indeed, it is claimed that such defects are already apparent. It may be that information of such defects, real or supposed, had come to some or all of the 87 who, at first, petitioned for the submission to vote in Eoswell of the commission plan of government. At all events, they had, before the petition came up for final action by the mayor and council, ceased 'to be petitioners in the sense that they still desired the action for which they had asked, Their signatures were still there, but the will to petition had departed from them. On what ground or principle of which courts can take cognizance can withdrawal be denied them ? The relator does not in this case allege that he has suffered damage or injury of which any recognized measure exists. He must, and as we understand does, rest his cause on the ground of public policy. But the public is not complaining. The Territory is only a nominal party. The legislature, which represented the public, could have limited the effect of withdrawal if it had seen fit to do so, in the statute authorizing the petition for an election.
The peremptory writ of mandamus, which was granted pro forma should be refused, and the judgment of the District Court is accordingly reversed, and the cause remanded.