(concurring specially). I concur in the conclusion reached in the opinion of the court as prepared by Mr. Justice Grace; but it is not clear to me that the distinction drawn in that opinion between § 949 of the Revised Code of 1905 and § 1240, Compiled Laws of 1913, the latter being an amendment of the former, providing for notice and a hearing, is sufficient to control the decision of the question involved. The question presented for decision is, as stated, the right of the petitioners to withdraw their names before the board of education has acted on the petition and attached the territory. In the case of Greenfield School Dist. v. Hannaford Special School Dist. 20 N. D. 393, 127 N. W. 499, this question was not involved. But the remarks in that case concerning the function of determining the sufficiency of *56the petition are, admittedly, somewhat pertinent. As I read § 949 of the Revised Code of 1905, the board of education was authorized, upon proper application being made, to make an order of annexation, and, as pointed out in the opinion by Mr. Justice Grace, no notice and no hearing was necessary. It would appear to me, therefore, that the board of education was required to take no step in recognition of the petition or toward achieving the end desired by petitioners until it should make the order. This being true, it would seem that, before anything is done under the petition, the petitioners should be free to withdraw their names. Under § 1240, Compiled Laws of 1913, however, the board must first determine the existence of a valid petition in order that - it may give the statutory notice of a hearing thereon. Thus, there must be at least a preliminary determination of the sufficiency of the petition. So, under the amended statute, it seems to me that there is less, instead of greater, reason for allowing petitioners to withdraw before final action is taken than under the former statute.
■ But I am satisfied that under either statute a petitioner may withdraw' before final action is taken; for in both the legislature has given to boards of education the power to annex adjacent territory only “upon application in writing signed by a majority of the voters of such •adjacent territory.” And if at any time before the order of annexation has been made, the application is altered by being converted into a protest, applicants by withdrawing their signatures would, in effect, withdraw their application. • If the contention of the respondents is correct, it would make possible the annexation of territory upon the protest of the majority of the voters instead of upon their application, and thus the statute would not only be defeated, but reversed. One can hardly be said to be applying for certain action when he is in fact protesting against it.
There are no preliminary steps involving material items of expense in attaching adjacent territory to a school district as is the ease with the organization of drainage districts. When a drainage petition is filed, jurisdiction is immediately conferred to do preliminary work of importance and involving expense; hence there is a clear ground for distinction between this case and the case of Sim v. Rosholt, 16 N. D. 77, 11 L.R.A.(N.S.) 372, 112 N. W. 50.
Bor the foregoing reasons I concur.