delivered the opinion of the court;
The question presented for decision is, whether petitioners for the organization of a new township under the foregoing statute can, after the petition has been presented to the county board, withdraw their names so as to leave it with a less number than that required by the statute, thereby defeating the organization, and if they can do so after the presentation, at what time must they make their application for that purpose. The position of counsel for appellants is, that when a legal petition is filed the jurisdiction of the board attaches and the power of the petitioners to change it by withdrawing their names ceases. On the other hand, it is insisted by counsel for appellee that until the final action of the board any of the signers of the petition may have their names stricken therefrom, and that if a sufficient number shall withdraw to leave less than the requisite statutory number of petitioners, the power of the board to act no longer exists.
The question is one of first impression in this State, and is not altogether free from difficulty. Although we have held that wThere a petition under this statute conforms to all its requirements the county board has no discretion but must allow it, and may be compelled by mandamus to do so, (Town of Somonauk v. People, 178 Ill. 631,) still the board is invested with the power, in the first instance, to determine whether or not the petition does conform to such requirements, and it must give notice of the presentation of the petition by posting and publication at least sixty days'before it can take any final action in the matter. The object of requiring these notices must be to afford parties interested, as petitioners or otherwise, an opportunity to appear at the final hearing and be heard. Our examination of the decisions cited by counsel on either side from other courts on analogous statutes has led us to the conclusion that the act of signing such petitions is not an-irrevocable act, and that it may be revoked at any time before the jurisdiction of the body authorized to -act has been determined by it. In Elliott on Roads and Streets (2d ed. 332) it is said: “After the board of commissioners, or other tribunal having jurisdiction of the matter, has passed upon the sufficiency of the petition, names cannot be withdrawn therefrom so as to oust the jurisdiction, and the statute may be such as to prevent that result even where an attempt is made to withdraw names before the tribunal has acted upon the petition. But in the absence of any such statutory provision it would seem that names may generally be withdrawn at any time before the tribunal makes its finding or determines the sufficiency of the petition.” The last clause of this text is supported by numerous authorities cited in the foot-note.
Little v. Thompson, 24 Ind. 146, and Grinnell v. Adams, 34 Ohio St. 44, are relied upon by counsel for appellants, but we do not regard either case as in conflict with the rule announced. In the first of' these cases, which was a petition to lay out a public road, it is said: “The facts necessary to give the commissioners jurisdiction in the matter were, first, that the requisite notice of the petition had been given; second, that the petition was signed by twelve freeholders of the county; third, that six of the petitioners were of the immediate neighborhood of the proposed highway.” The attempt to withdraw the name was after these jurisdictional facts had been determined and viewers appointed. Elliott, C. J., rendering the opinion of the court, uses this language: “It is not doubted but that any petitioner may withdraw at any time before the question of jurisdiction has been passed upon by the board."
In Lalonde v. Board of Supervisors, 80 Wis. 380, it was held that under a statute providing that upon the presentation of a petition signed by two-fifths of the legal voters of the county the county board should submit to the voters of the county the question of removal of the county seat, it was held the board might properly take a reasonable time after the filing of the petition to ascertain, by comparison with the poll-lists, whether it has the requisite number of signatures, and that, before final action by the board on such a petition, voters who had signed it might withdraw their names, and if such withdrawal left the petition without the required number of signatures the board would be without jurisdiction to submit the question of removal. To the same effect is State ex rel. v. County Board, 88 Wis. 355.
In this case the board of supervisors did not determine the sufficiency of the petition and the requisite notice until June 10, 1901. According to the allegations of the answer, which are admitted by the demurrer, prior to that determination the twenty-seven petitioners withdrew their names from the petition. No final action was taken by the board until the following September, at which time, under the foregoing authorities, a petition signed by three-fourths of the legal voters of the proposed new town was not before it, and therefore it properly denied the prayer. If all the petitioners had sought to dismiss the petition at any time before final action by the county board it would scarcely be claimed that they would not have had the right to do so. Bach petitioner acts on his 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 through 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. It may be, as suggested by counsel for appellants, that vacillating or desigming parties will abuse that privilege; but courts are powerless to prevent, in every case, such abuses. Suits may be, and doubtless sometimes are, broug'ht with the deliberate purpose of dismissing them for some sinister purpose; but that fact cannot argue against the propriety of the general rule, which permits a plaintiff to dismiss his suit at any time before final judgment. To absolutely prohibit a citizen from withdrawing his name from a petition voluntarily signed by him, at any time after it has been presented to a body authorized to act upon it, would be a harsh and unreasonable rule and also liable to work great hardship. Generally, parties act from honest motives, and it is for the protection of the rights of such parties that laws are enacted and construed.
We are satisfied the court below properly dismissed the petition, and its judgment will be affirmed.
Judgment affirmed.