Page:North Dakota Reports (vol. 48).pdf/77

 electors within the territory attempted to be organized into a new district had the right to withdraw their names from the petition within the time above stated, and that the signing of a remonstrance within that time constitutes a withdrawal of the names of those who signed it.

We further hold that the board of county commissioners had no authority to make the order which purported to create the new district, it clearly appearing that, at the time such order was made, there was no petition on file with the county commissioners which contained the names of two thirds of the school electors of the territory sought to be organized into the new district.

The order and judgment of the district court from which the appeal has been taken are affirmed.

The respondent is entitled to the statutory costs and disbursements on appeal.

, Ch. J., and, J., concur.

, J. (concurring). The questions presented on this appeal are: (1) The right of the signers of a petition for the organization of a new school district to withdraw their names therefrom after the petition has been filed with the board having jurisdiction to entertain it. but before hearing has been had and final action taken thereon; and (2) if such right exists,,is it exercised by the subsequent signing and filing of a remonstrance against the allowance of the petition?

(1) I agree with Mr. Justice Grace that the decision of this court in Rosten v. Board of Education, 43 N. D. 46, 173 N. W. 461, is decisive of the first question. The principle announced and the views expressed therein by the different members of this court, both as to the right of petitioners to withdraw their names from a petition after notice of hearing has teen given, but before final action has been taken, and the reason why the rule announced in Sim v. Rosholt, 16 N. D. 77, 11 L.R.A. (N. S.) 372, 112 N. W. 50, is inapplicable to a petition like that involved in the Rosten Case, are directly applicable here.

(2) We are not dealing with a situation where the statute provides a certain mode in which petitioners may withdraw their names from a petition. For it will be noted that our statute prescribes no particular mode in which petitioners must withdraw their names. And where the right to withdraw exists, and the statute prescribes no mode for the exercise of