Dissenting Opinion
Achor, C. J.This is an action to enjoin the issuance of bonds by a township under a special statute. §64-312(d) and §64-313, Burns’ 1951 Repl. The proceedings as prescribed by the statute, are as follows: (1) the action is initiated on petition of 50 or more owners of taxable property, which shall be laid before the body authorized to issue such bonds; (2) if said body determine to issue such bonds for the purpose specified, a 30 day notice shall be given, during which remonstrances may be filed with said body, and (3) if remonstrances in number greater than the petitioners shall be filed “then no such obligation shall be issued.”
Briefly the facts which gave rise to the controversy in this case are as follows: 1. The petition was signed by 744 persons, 122 of whom withdrew from the petition before the petition was submitted to the appellee tribunal. This left a total of 622 petitioners on the petition at the time it was submitted to appellees for action. 2. Thereupon the appellees entered a determination that the bonds issue as petitioned and ordered the required notice by publication for *13the filing of remonstrances to such action. 3. During the period prescribed for remonstrance a total of 718 owners of real estate signed and filed a remonstrance. Of these, however, 70 withdrew their names during the 30 day period, leaving a total of 648 taxpayers who timely filed their remonstrance to the action, as compared with 622 petitioners. 4. It further appeared that 202 persons, who had not withdrawn from either, had signed both the petition and the remonstrance.
The specific question presented for our determination is whether the 202 persons above referred to should be counted as petitioners or remonstrators or whether they should be considered for either or both purposes. It is with regard to the legal effect of these names upon the proceedings that I differ with the majority opinion.
As stated in the majority opinion, “The sole question at issue in the trial court and the only one properly presented here on appeal is: Were there more remonstrators than there were petitioners?”
There is no dispute that where a prescribed number of petitioners is necessary to vest a tribunal with jurisdiction to act, persons signing such a petition may not withdraw their names therefrom after the tribunal created by the law to receive and consider such petition has acted thereon.1 This rule is necessary because of the fact that petitioners should not, by decreasing their number, deny the tribunal jurisdiction to perform the action which it has al*14ready taken. However, it is the position of the appellees that a person signing the petition could not remonstrate to the proposed action unless he had first withdrawn from the petition and that such withdrawal could be made only “before any action had been taken on the petition.” It is my opinion that this position is neither supported by reason or by the reported decisions of this court.
Where, as in the present proceedings, the ultimate action (the issuance of bonds) as proposed by the petition and approved by the appellees is by statute expressly made to depend upon the will of the majority of taxpayers as numerically expressed by the petition for and remonstrance against the proposed action, then it seems to reasonably follow that the appellee tribunal in determining the will of the majority must consider the names of all petitioners and all remonstrators to the action as they appear at the time of such enumeration.
Where the name of a taxpayer appears both as a petitioner and as a remonstrator it could be argued with reason that the last expression of the will of the taxpayers, as expressed by the remonstrance should prevail, since that instrument would ordinarily express the taxpayer’s final and more seasoned judgment regarding the proposed action. However, long established precedent of this court seems to be that under such circumstances the effect of the petition and the remonstrance is merely to counteract each other. In other words the name of the taxpayer will be considered as a petitioner and also as a remonstrator.
In the early case of Noble et al. v. City of Vincennes (1873), 42 Ind. 125, this court stated the rule as follows:
*15“When a party who has signed a petition for the doing or granting of something afterward signs a remonstrance against the doing or granting of what he has petitioned for, it would seem reasonable that the one should counteract and destroy the effect of the other, if the remonstrance is presented before action has been had in accordance with the petition.” (Page 130.)
Concerning the decisions of this court appellees rely upon the last clause quoted from the above case and assert that because action had “been had in accordance with the petition” therefore the right of a petitioner either to withdraw from the petition or to remonstrate to the action no longer existed. The case of Noble et al. v. City of Vincennes, supra, does not sustain this position. In that case the Vincennes City Council on petition of its taxpayers authorized a donation of $100,000 to the Vincennes and Cairo Railroad Company. The case holds that, notwithstanding the fact that the council had authorized the donation, taxpayers could both withdraw from the petition and join in the remonstrance against the authorized donation until such time as some action binding upon the city had been taken. In that case this court stated:
“There would seem to be nothing irrevocable in the signing of a petition. . . . (Page 130.)
“Was the remonstrance in time to counteract the effect of the petition? We think it was. ... In our opinion, there had not been, at that time, any binding and conclusive action of the council upon the petition. No right to the amount intended to be donated had accrued in favor of any one, or which could be enforced by any one.” (Page 131.) (Our italics.)
Furthermore, in the recent case of Pullin et al. v. Arnold et al. (1954), 234 Ind. 13, 122 N. E. 2d 858, *16this court citing the case of Noble et al. v. City of Vincennes, supra, held that in a ditch proceedings where final action was dependent upon the number of remonstrators to the action, property owners who had signed the petition could withdraw therefrom and join in the remonstrance against the proposed action during the period provided for remonstrance, even though a bond had been posted and viewers had been appointed for the drain in accordance with the petition.
Since in this case no action binding upon the township had been taken or could be taken with regard to the issuance of the proposed bonds except on the basis of the remonstrance filed, in my opinion, the principles above stated and the decisions of this court above cited require that the will of all taxpayers as expressed by their remonstrance to the proposed action be considered.
Note. — Reported in 159 N. E. 2d 576.
. Current v. Current (1920), 72 Ind. App. 363, 365, 125 N. E. 779; Carr et al. v. Boone et al. (1886), 108 Ind. 241, 245, 9 N. E. 110; State v. Gerhardt (1896), 145 Ind. 439, 473, 474, 44 N. E. 469, 33 L. R. A. 313; State ex rel. Harry v. Ice (1934), 207 Ind. 65, 69, 191 N. E. 155, 92 A. L. R. 1508; Pullin et al. v. Arnold et al. (1954), 234 Ind. 13, 16, 122 N. E. 2d 858.