[66] On Rehearing [68] The sole issue presented on the rehearing granted in this case is: When does the right of withdrawal of signatures to a petition for annexation filed under the provisions of Act No. 315 of 1946 terminate?
[69] After citing five different rules which prevail in other jurisdictions, the majority opinion, on original hearing, adopted the one which limits the right of withdrawal to the time when jurisdiction over the subject matter attaches. This is somewhat of a middle-ground rule between two extremes: one holding that the right expires at the time of the filing of the petition; and the other, that it continues until final action is taken on the subject matter of the petition. The city council was held, in this case, to have become vested with jurisdiction after the petition filed by the required number of resident property owners in the area sought to be annexed, as well as the required percentage of property values, according to the certificate of the Parish Assessor, had been properly presented and ten days had elapsed from the time of notice of its filing by publication, and after holding of a hearing on the petition; all as is required under the provisions of the statute.
[70] There can hardly be any doubt but at that time, the city council had become vested with power to act on the matter submitted to it and determine it, at its own discretion, and that, after all, is what is meant by the term "jurisdiction", generally speaking, with regard to such governing bodies. Vol. 23, Words and Phrases, Perm. Ed., pages 358, 381.
[71] We still believe that the middle ground rule, based on the ground of jurisdiction having attached, is a fair and reasonable one and is particularly appropriate in a case of this kind where the procedure set out in a statute, leading to a proposition as important as the one here involved, has been carefully followed. Certainly there appears to have been no attempt or intention on the part of the city council to circumvent any of the provisions of the statute or to deviate from the procedure therein designated. The filing of the petition was duly advertised for the period required, and the hearing was held at which everyone interested was given the right to be heard. The petition was then acted on and the ordinance introduced. The ordinance was then read for a second time and it was not until the time arrived for its final adoption that some of the parties who had signed the petition sought to withdraw their names. It is true, as contended, that a person should be given the right to change his mind on any proposition but we are of the opinion that in matters involving the procedure outlined in a statute, such as the one under consideration, he should not be permitted to do so after all such procedure had been gone through, the petition which he signed acted upon, and all that remained to be done was for the governing body to take final action by adopting the ordinance. The purpose of such a statute could readily be thwarted by a few people opposed to the proposition presented, by inducing a sufficient number of signers to withdraw their names from the petition and thus take the matter out of the hands of the governing body where they had been satisfied to place it before and had permitted favorable action to be taken. As suggested in the majority opinion on the original hearing, to permit a withdrawal of names from the petition up to the time of the final action in a case like this, would make the process of annexation very difficult indeed, if not impossible.
[72] In their brief on rehearing, counsel for plaintiff cited two cases decided by this court, neither of which would appear to be of great weight in determining the question presented. In the first, City of New Orleans v. Stewart, 18 La.Ann. 710, it was stated that a paving lien would not be held unenforceable because of the fact that the ordinance creating the same had been adopted after opposition had been filed but then withdrawn. The court went on to say: "* * * there is nothing in the law which prevents a reasonable withdrawal of the opposition." The difference between the situation in that case and the one in the case now before us is apparent. In the cited case, the action taken was of a negative character and allowed the proceedings to continue as though uninterrupted, while in the present case the action sought to be upheld by the withdrawal is one which would put an end to all of the proceedings taken up to that time, or if not to end them, then certainly to cause serious delay.
[73] The other case cited is that of Perot v. Police Jury of Natchitoches Parish, 208 La. 1, 22 So.2d 666; however, there is nothing in the opinion in that case which bears on the question here at issue as the court seems to have been concerned only with the admissibility of certain counter petitions to a proposition for calling a local option election, that were irregular and invalid on their face. No mention is made of the time in which they could be filed.
[74] Counsel also cited several cases from other jurisdictions in which, for the most part, a rule other than the "jurisdictional rule," if it can be so called, was followed. Those cases all tend to emphasize the divergence of opinion on the subject, which after all, is not one of purely legal aspects, but one that is largely concerned with policy considerations. In the final analysis it would seem that the rule which is the least harsh and unworkable, and which tends to give effect to the provisions of a statute, such as the one with which we are concerned in this case, is the proper rule to be followed. We believe that the rule that was held to apply in the majority opinion on the original hearing is the one that best carries out the intention and purpose of the law and for these reasons we adhere to the ruling therein made.
[75] It is ordered that the original decree heretofore handed down be now reinstated and made the final judgment of the court.
[76] FOURNET, C. J., and PONDER, J., dissent.