Page:North Dakota Reports (vol. 48).pdf/76

 time of the filing of the petition, except to give the notice, until the arival of the day fixed for hearing on the petition.

Whether the commissioners’ order for organization of the new district, made on or after the day of hearing, would be valid, would depend on whether or not, at the time it was made, there was before it a valid petition; that is, a petition at that time containing the names of two thirds of the school electors of the territory to be organized into the new school district. If, between the time of filing the original petition, and the day of hearing, electors in sufficient number had withdrawn their names from the orginaloriginal [sic] petition, by signing a remonstrance petition; or by making known to the board of county commissioners, before or on the day fixed for the hearing of the petition, the fact that they desired to or had withdrawn their names from the original petition, and such withdrawals were in sufficient number as to reduce the names on the original petition to a number less than the two thirds by law required, it is clear the board of county commissioners, in that event, would have no authority or jurisdiction to make the order.

We stated in Rosten v. Board of Education, supra, as follows:

“It seems to us it was the intention of the legislature in amending § 949 to provide a means whereby those who signed a petition to annex territory to a special school district might reconsider their act in signing the petition and withdraw their names therefrom at any time within the fourteen-day period; that, further, it was the intention of the legislature that there should be a sufficient petition at the time of the making of tie order annexing the territory; that, if there was not a sufficient petition at such time, then the board of education would not have the authority to make the order annexing the territory.”

We think the same reasoning applies here. It is our opinion that those who signed the original petition had all of the thirty-day period, during which notice was being published, and until and including the time of hearing on the petition, to withdraw their names from it.

The appellant concedes that this case is governed either by the case of Rosten v. Board of Education, supra, or the case of Sim v. Rosholt, 16 N. D. 77, 11 L.R.A. (N. S.) 372, 112 N. W. 50.

The reasons given, in the opinion in the case of Rosten v. Board of Education, why the reasoning and decision in Sim v. Rosholt did not apply in that case, are equally applicable here.

We hold that the signers of the petition who were resident school