The great question presented for determination in this case is whether a signer on a recall petition may withdraw his name therefrom before the officer with whom it is required to be filed has determined the sufficiency thereof, and called the election. The question thus presented is one of great importance and affects the rights of every individual elector in the state. The answer to the question must be sought, and found, in the constitutional provision relating to the recall. The language of that provision is such as to render the question one of considerable difficulty. No reference is made therein for withdrawal of names from a recall petition. But it does not follow from this either that a signer to such petition has, or does not have, the right to withdraw his name therefrom. The question whether and when a petitioner may withdraw his name from a petition which forms the basis for some contemplated governmental action has arisen in many cases and in widely varying circumstances.
While the reported cases furnish little assistance as regards the specific question presented here, as the different cases are controlled largely by the particular statutory or constitutional provisions involved, they do shed some light upon the general question of the right of a petitioner to withdraw his signature and the circumstances in which such right impliedly exists. No authority has been found which denies to a petitioner the right to withdraw his name while the petition is still in circulation and before it has been presented to the person or body with whom it is required to be filed. Neither do any of the authorities recognize the right of a petitioner to withdraw his name from a petition after it has been finally acted upon and the prayer thereof has been granted by the person or body who is required to act upon it.
In a number of cases the rule is announced that one who has signed a petition may withdraw his name therefrom at any time before final action has been taken pursuant thereto by the board or officer empowered to determine the matter which the petitioners seek to have determined. Note in 11 L.R.A.(N.S.) pp. 372, et seq. In other cases *Page 283 the right to withdraw from a petition is held to be more limited and is deemed to be terminated when the officer or board to whom it is presented recognizes the validity of the petition and takes action thereon looking toward the final disposition of the proceeding or matter sought to be initiated by the petition. Note in 11 L.R.A.(N.S.) pp. 372, et seq.
The courts have generally held that, as regards the right of a petitioner to withdraw his name, a recall petition is subject to the same rules as a petition for any other election. Rominger v. Nellor, 97 Wash. 693, 167 P. 57; Laam v. McLaren, 28 Cal. App. 632,153 P. 985. The question whether a petitioner for a recall election may withdraw his name from the petition and, if so, when, is presented to this court for the first time in this case. But the question of the right of a petitioner to withdraw his name from a petition in other proceedings has arisen and been presented to this court for determination in the following cases: Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L.R.A.(N.S.) 372; Rosten v. Board of Education, 43 N.D. 46, 173 N.W. 461; State ex rel. Knox v. Stevens, 48 N.D. 47, 183 N.W. 109; State v. Farmers Bank, 61 N.D. 427, 238 N.W. 122.
Sim v. Rosholt, supra, involved a petition for the establishment of a drain. In that case the court held (Syllabus, ¶ 1) that "the jurisdiction of the board of drain commissioners to order such drain is acquired by the filing with the board of a petition as therein required, and after such jurisdiction is thus acquired, and the board has taken action thereunder, it cannot be divested of such jurisdiction by the action of the petitioners in withdrawing their names from the petition."
Rosten v. Board of Education, 43 N.D. 46, 173 N.W. 461, supra, involved a petition for the annexation of certain territory to a special school district. The statute required notice to be given of the hearing of the petition. Certain petitioners sought to withdraw their names from the petition after it had been filed and notice of the hearing had been given, but before the hearing had been had. The court held that the petitioners had the right to withdraw their names from the petition "at any time prior to the time of the making of a legal order by the Board of Education annexing the territory." Syllabus, ¶ 1.
State ex rel. Knox v. Stevens, 48 N.D. 47, 183 N.W. 109, supra, involved a petition to divide a common school district and to organize *Page 284 a new district out of a portion of the former district. The statute required public notice of the petition to be given to the residents of the districts whose boundaries would be affected by the organization of a new district. A number of the signers on the petition signed a remonstrance which was presented and filed after notice had been given of, but before final action had been taken on, the petition. The court held that the petitioners had a right to withdraw their names and that the withdrawal was timely.
State v. Farmers Bank, 61 N.D. 427, 238 N.W. 122, supra, involved an application for the liquidation of an insolvent bank by a committee chosen by the depositors. Laws 1927, chap. 99, § 21. The statute provided that when a bank had been closed and placed in charge of a receiver, the "deposit creditors" thereof might cause the liquidation to be withdrawn from the receiver and placed in the hands of a liquidating committee. The statute required, as a prerequisite to this mode of liquidation, that a plan of liquidation be agreed upon in writing by at least eighty per cent of the deposit creditors, "exclusive of public money secured by indemnity bonds or otherwise." The statute further provided that after such plan had been approved by the state examiner, upon application to the court by whom the receiver had been appointed, the liquidation of the bank should be "withdrawn from the receivership" and vested in the liquidating committee. A liquidating plan conformable to the provisions of the statute had been formulated and presented to the court. The court thereupon issued its order to show cause directing the receiver formerly appointed by it to show cause why the application to have the bank withdrawn from the receivership and vested in the liquidating committee should not be granted. Upon the hearing pursuant to the order to show cause the receiver presented a petition, signed by a number of the persons who had signed the instrument providing for liquidation under the direction of the liquidating committee, asking that their names be stricken from such instrument. The question arose whether these persons had a right to withdraw their names from the liquidating plan. This court held that they might withdraw their names therefrom at any time before the application had been granted by the court.
The object sought to be accomplished by the petition in question here is to have an election held for the recall of a state senator. The *Page 285 officer empowered to receive and file such petition is not merely a clerk charged with the ministerial duty of receiving and placing on file whatever may be presented to him labeled "a petition;" he is charged with the duty and vested with the power of passing upon and determining, in the first instance, the sufficiency of the petition, and this function includes a determination of whether the petition has been signed by the number of electors prescribed by the constitutional provision. State ex rel. Laird v. Hall, 49 N.D. 11, 186 N.W. 284.
In this case it was stipulated as a fact in the trial court that "on the 20th day of May, 1932, and before any action was taken on the recall petitions," there was filed in the office of the county auditor of Dunn County a petition containing 921 names of the signers of the recall petition asking that their names be stricken and withdrawn from the recall petitions and that "if it is legal to file and have considered said withdrawal petitions" it reduces the number of signers on the recall petitions to less than 30 per cent of the vote cast for governor at the last preceding election.
The constitution makes it the duty of the designated officer to call a recall election when a petition for such election has been filed with him "signed by at least 30 per cent of the qualified electors who voted at the preceding election for the office of governor in the state, county or district from which such officer is to be recalled."
A recall election is obviously a most serious matter. It is only when a sufficient petition so signed is filed that the officer has the power to call the election. Otherwise, he is wholly without authority to call an election. State ex rel. Laird v. Hall, 49 N.D. 11, 14, 186 N.W. 284.
If before the sufficiency of the petition has been determined and the election called, a number of the signers make written demand that their names be withdrawn from the petition and thus express their purpose and conclusion that such an election ought not to be held, can they still be regarded as petitioning for the election? If a large number of the original signers thus solemnly and clearly manifest their change of purpose before an election is called, so that the number actually favorable to the recall is reduced to a mere fraction of the constitutional minimum, can it be said that a sufficient petition is filed? Perhaps the answer to the question is not obvious, but it seems to me when the nature and purpose of a petition for a recall election is *Page 286 considered, it being a product of voluntary action, it is more reasonable to give effect to the full voluntary expression than to force an elector to be irrevocably bound by his first expression while no rights have been affected thereby.
In the absence of any express provision in the constitution to the contrary that interpretation seems most reasonable which is consonant with the prevailing rules as regards the withdrawal of names from a petition.
Many, if not most, of the provisions of law relating to the recall require the grounds for the proposed recall to be stated. This is true, for instance, of a petition for the recall of an officer of a city in this state. Comp. Laws 1913, § 3835. However, the recall provision of the constitution does not require any grounds to be stated. It is possible, therefore, for those who circulate a recall petition to present to each signer a wholly different reason why the officer should be recalled. Obviously, the electors are not likely to sign the petition unless they deem to exist some valid ground for such action. It should not be assumed that electors sign such petitions as a matter of mere whim or caprice. The consequences, both from the standpoint of the officer and the public, are too serious for that. It is, therefore, only fair to assume that a person who circulated such petition must have presented to each signer some impressive reason why the officer should be recalled. Later, if a signer should ascertain that the grounds represented did not exist, why should he be precluded from rescinding his action before anyone has been affected by it? I can see nothing in the constitutional provision regarding the recall that requires such construction. I can see nothing in it that prevents an elector from withdrawing his name from a petition in the same circumstances that would entitle him to withdraw his name from any other petition looking toward governmental action.
It seems to me that the underlying philosophy of the recall provision of the constitution is in harmony with the view that he may withdraw. It attaches governmental significance to the voluntary action of petitioners. The matter is subject to the control of electors who evidence by their action a common desire, and, when the unmistakable written evidence is that such desire is not joined in by the requisite number, the calling of an election, notwithstanding that fact, amounts to giving *Page 287 effect to the expression of a desire shared by less than the constitutional minimum. Thus to deny the right to withdraw is in effect to override the primary requirement that a recall election is to be called only upon the voluntary concurrence of at least thirty per cent of the electors.
Under the law no supervision is had over a recall petition that is being circulated. A person circulating a petition is not an official in any sense of the word. The petition does not come into the hands of any official until it is filed with the officer designated to receive it. If a signer is inhibited from withdrawing his name, then it is possible that a recall election may be had where at the time the election is called not a single petitioner actually has any desire that such election be held.
That the signer to a petition has a right to withdraw his name before final action has been taken, or before its validity has been determined by the officer or board to whom it is required to be presented, has frequently been recognized. In Littell v. Vermilion County, 198 Ill. 205, 65 N.E. 78, in considering a petition for the organization of a new township, the court said:
"Each petitioner acts on his own individual responsibility, and if he should change his mind on the question whether a new township would better serve the convenience of the inhabitants residing therein, or if he should be induced to sign it under a misapprehension or undue influence, he ought to have the right to correct his mistake if he does so before the rights of others have attached by the final action on the part of the Board."
In La Londe v. Barron County, 80 Wis. 380, 49 N.W. 960, the court, having under consideration a petition for the removal of a county seat, said:
"What valid objection is there, either in law or on grounds of public policy, against allowing a person who has signed a petition asking for a removal of the county seat from withdrawing his name from the petition before it is acted upon by the board? As the learned counsel for the defendants say, a person may have been deceived or entrapped, or through inadvertence or thoughtlessness may have signed such a petition, and on reflection and before action is taken on it, may desire to correct his action and withdraw his name. Why should he not have the right and privilege of doing so? An intelligent man, acting *Page 288 deliberately and understandingly, may change his mind on such a question, and conclude he has made a mistake in asking for a change of the county seat, and that the public interest will be promoted by having the county seat remain where it is. All this is plain and obvious to any one reflecting upon the subject. The statute goes upon the theory that two-fifths of the legal voters desire and ask for a change and that the question be submitted to a vote of the electors, manifesting their wish by signing their petition for that purpose, and that this wish continues to the time the board acts upon the petition. The law goes upon that theory."
The reasons given by these courts seem peculiarly applicable here. The petition for a recall election is quite unlike a petition for the construction of some improvement such as that involved in Sim v. Rosholt, supra. There the different signers had an interest in a proposed drain by virtue of their ownership of property to be benefited. Here the individual signer acts as an elector. The signatures are obtained at different times and under different circumstances and conditions. It is a matter of common knowledge that the signers exercise no control over the petitions which they have signed. These remain in the hands and under the control of the persons who have circulated them. Surely it would seem that in these circumstances it must have been intended that any signer who, for reasons sufficient unto himself, desires to withdraw his name, has a right to do so at any time before the officer with whom it is filed has determined its sufficiency and called the election. Such signer is in fact no longer a petitioner, and ought not to be so considered in the eyes of the law. Rosten v. Board of Education, 43 N.D. 46, 173 N.W. 461, supra; State ex rel. Knox v. Stevens, 48 N.D. 47, 183 N.W. 109, supra.
It seems to me that such construction of the recall provision of the constitution is much more in accord with the underlying theory of the provision, namely, that a recall election shall be called only when 30 per cent of the qualified electors have manifested their earnest desire and purpose that such election be held by their signatures affixed to and remaining on a petition on file with the officer empowered and required to call the election.
I am authorized to say that Judge BIRDZELL concurs in this opinion. *Page 289