Failure to follow the directions of a statute regulating elections is not always fatal, whether the election be general or special. If there has been a substantial compliance with the law and the attack comes after the election, no fraud appearing, the defects being simply irregularities, the election will be upheld. Thus in Lane v. Bailey, 29 Mont. 548, 75 P. 191, the failure of a registering agent to perform his duty was not allowed to deprive qualified electors of their right to vote, and this doctrine was expressly approved in Goodell v. JudithBasin County, 70 Mont. 222, 224 P. 1110, in which the Indiana *Page 223 rule, quoted in the majority opinion in this case, as expressed in Jones v. State ex rel. Wilson, 153 Ind. 440, 55 N.E. 229, was adopted.
I agree that sufficient notice was given, the challenge coming after election, under the rule announced in the Goodell Case and in State ex rel. Patterson v. Lentz, 50 Mont. 322,146 P. 932. But in Weber v. City of Helena, 89 Mont. 109,297 P. 455, there was not a substantial compliance with the election statutes, and we were compelled to declare the election void. In my opinion we should have followed that course inChicago, M., St. P. P.R. Co. v. Fallon County, 95 Mont. 568,28 P.2d 462, which, in my opinion, was wrongly decided and should be overruled. In that case this court denied the force of mandatory statutes, regardless of the fact that there had not been a substantial compliance therewith.
In Lane v. Bailey, supra, it was held in effect that, if the number of votes affected were not sufficient to change the result, the election should not be disturbed and that course rightly is to be pursued in this case.
The election being valid, it was the duty of the board of county commissioners to pass the resolution provided for in section 14 of Chapter 188, Laws of 1931. Delay on their part will not vitiate the election; the will of the people must not be thwarted by the failure of the commissioners to do their duty. They can be compelled by an appropriate action to pass the resolution. (Custer County v. Yellowstone County, 6 Mont. 39,9 P. 586.) Mandamus will compel them to discharge their duty in the premises. *Page 224