DISSENTING OPINION
By THOMPSON, J.The facts are sufficiently stated in the majority opinion. For purpose of explaining my dissent, I wish to emphasize the language of the petition demurred to, reciting, in effect, that no publication of notice, as provided in §5704 GC, was ever made by the County Auditor with respect to parcel No. 1, prior to attempted forfeiture of the parcel in question. In my opinion, the publication required by §5704 GC is mandatory and failure to publish invalidated the subsequent forfeiture proceedings and auditor’s sale.
That part of present §5704 GC pertinent to the instant discussion is as follows:
“It shall be mandatory upon the county auditor to cause a list of the lands on such delinquent land list and duplicate to be published twice, within sixty days after the delivery of the duplicate to the county treasurer, in two newspapers of opposite politics in the English language published in the county and of general circulation therein; provided, however, that, before such publication, it shall also be mandatory upon the county auditor to cause a display notice of the forthcoming publication of the delinquent list and duplicate to be inserted once a week for two consecutive weeks in two newspapers of opposite politics in the English language published in the county and of general circulation therein.”
Apparently no Ohio case has directly passed upon the meaning of the last quoted language, effective August 11, 1943. An earlier form of §5704 GC as contained in 108 Ohio Laws, Part II, 1243, approved February 18, 1920; was interpreted by the Supreme Court of Ohio in Miller v. Lakewood Housing Co., 125 Oh St 152, decided April 6, 1932. The language there under consideration was as follows:
“Each county auditor shall cause a list of delinquent lands in his county to be published once a week for two consecutive weeks, between the 20th day of December and the second Thursday in February, next ensuing, in one daily newspaper in the English language * * •*. There shall be attached *349to the list a notice that the delinquent lands will be certified to the auditor of state as delinquent, as provided by law.”
The Supreme Court of Ohio in the Miller case came to the conclusion that §5704 GC in its then form was not mandatory, but Chief Justice Marshall did not concur in the third paragraph of the syllabus to this effect. In the opinion, the Supreme Court (Judge Allen), reaching the conclusion that the language of §5704 GC then before the Court was directory, and not mandatory, declared in part as follows:
“Whether a statutory requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory; but, if not, it will be mandatory. This is the rule usually followed in this state in deciding whether statutory provisions constitute conditions precedent whose omission invalidates further action under the statute in question.”
The case of Miller v. Lakewood Housing Co., 125 Oh St 152, interpreting §5704 GC, as enacted in 108 Ohio Laws, Part II, 1243, was followed in a decision by the Supreme Court of Ohio the following year in State ex rel Belt v. Mason, 127 Oh St 574, decided November 22, 1933, affirming 46 Oh Ap 42. This case interpreted §5704 GC as re-enacted in substantially similar language in 114 Ohio Laws 831.
The language we are here called upon to consider appeared for the first time in 116 Ohio Laws 261, passed by the General Assembly on July 16, 1936 and re-enacted in 120 Ohio Laws 154, effective August 11, 1943. It seems to me that the language here before us for consideration differs so substantially from the earlier language that the case of Miller v. Lakewood Housing Co. is inapplicable.
In examining, generally, the principles applicable in determining whether language of a statute is to be construed as mandatory or directory, various tests have been applied. In 50 American Jurisprudence “Statutes,” Sec. 24, it is declared:
“There is no well-defined rule by which directory provisions in a statute may, in all circumstances, be distinguished from those which are mandatory. In the determination of this question, as of every other question of statutory construction the prime object is to ascertain the legislative intention as disclosed by the terms of'the statute, in relation to the scope, history, context, provisions, and subject matter of the legislation, the spirit or nature of the act, the evil intended to be remedied, and the general object sought to be accomplished.”
*350In Section 25 of the same treatise there is a further discussion of the distinction between mandatory and directory provisions of statutes and in amplification it is stated:
“Generally speaking, those provisions which are a mere matter of form, or which are not material, do not effect any substantial right, and do not relate to the essence of the thing to be done, so that compliance is a matter of convenience rather than substance, are considered to be directory. This is true of statutory provisions for the expeditious, proper, or orderly conduct of business- merely. On the other hand, statutory provisions which relate to matters of substance, affect substantial rights, and are the very essence of the thing required to be done, are regarded as mandatory.”
In 37 O. Jur., “Statutes,” Section 27 discusses the meaning of the word “mandatory.” That section declares as follows: “The word ‘mandatory’ has been used synonymously with ‘indispensable.’ A mandatory provision is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding.”
See, similarly, State ex rel Jones v. Farrar, 146 Oh St 467 and the first paragraph of the syllabus holding as follows:
“A statute is mandatory where noncompliance with its provisions will render illegal and void the steps or acts to which it relates or for which it provides, and is directory where noncompliance will not invalidate such steps or acts.”
Attention is also directed to 37 O. Jur., “Statutes” Sec. 34, concerning the effect of an amendment by the legislature of mandatory or permissive language. It is there stated that, the amendment of an existing law by the substitution of the word “may” for the word “shall” manifest a clear legislative intent and purpose to make the action therein referred to permissive rather than mandatory. The section then declares:
“Conversely, when a section of an existing law is amended by the general assembly by striking out therefrom ‘may’ and inserting in lieu thereof ‘shall,’ a clear intent is manifested to alter the directory nature of the law and render it mandatory.”
Particularly interesting is the discussion in Sec. 441 on the effect of judicial interpretation of statutory provisions. The latter section declares in part as follows:
“In the interpretation of statutory law after an amendment thereof, the courts may take into consideration the construction by earlier decisions of the statute before its amendment. *351The body enacting the amendment is presumed to have in mind such judicial construction; and if, in the subsequent statute, it uses different language in the same connection, the presumption arises that a change of law was intended.”
See, also, State ex rel Mittman v. Board of County Commissioners, 94 Oh St 296, where language in the decision of Chief Justice Nichols has been frequently approved in later decisions. The language referred to is as follows:
“Where, as in the instant case, the general assembly deliberately amends an existing law by striking out may and substituting shall, it would be absured for the court to deliberately give the meaning of may to the newly substituted shall. It would indeed be a mockery in the way of construction and would be equivalent to a judicial repeal of the amended act and a judicial reenactment of the former law.”
In reaching a decision with respect to the meaning of §5704 GC, in its present amended form, we should note the changed language, expressing what appears to be the clear intent of the General Assembly to make mandatory the advertisement called for by §5704 GC. Whereas most of the cases discussing the question whether words in a statute are to be construd as mandatory or directory have involved circumstances in which a legislature has used the word “may,” or the word “shall,” the Ohio General Assembly in this instance, presumably, in order that there might be no question as to its intention, not only used the word “shall,” when it amended §5704 GC, but went so far as to specify that the advertisement called for “shall be mandatory.” This change appears particularly important because the General Assembly took this action very shortly after, and it must be assumed with knowledge of, the Supreme Court’s decision declaring that the earlier wording was to be deemed permissive or optional rather than mandatory. Although of course not controlling upon us, we may note that two opinions of the Attorney General of Ohio, shortly after the present law was enacted, expressed the belief that the language of §5704 GC, adopted by the General Assembly after the Ohio Supreme Court’s decision in the Miller case, is mandatory with respect to advertisément. See 1937 Opinions, Attorney General, No. 786 and, also, 1938 Opinions, Attorney General, No. 2375.
I believe that only by giving mandatory meaning to the language of §5704 GC are we able to reach the conclusion that the due process rights of the individual are protected as guaranteed by the U. S. Constitution, Amendment XIV, and the Ohio Constitution, Art. I, Sec. 16. The majority opinion finds such protection in the publication required by §5718-lb *352GC, but the language oí that section appears less clearly mandatory and more readily susceptible of directory interpretation than the publication provided for in §5704 GC.
Reverting to the decision of the Ohio Supreme Court in Miller v. Lakewood Housing Corporation, 125 Oh St 152, it is not without significance that the case in question is discussed in a note in 81 A. L. R. 1246, entitled “Necessity of publishing list of lands delinquent for nonpayment of taxes, and effect of failure to publish list” and that the note summarizes the law on the subject generally as follows:
“Where a statute requires the publishing of a list of the lands which are delinquent for non-payment of taxes, it is generally held that such statute must be strictly followed, since it is designed to give notice to the landowner of the fact of delinquency and of the amount of the taxes. The cases are numerous holding that an irregular publication in any particular will avoid a subsequent sale of the delinquent lands.” * * *
Believing that the present language of §5704 GC, calling for publication of delinquent lands by the county auditor requires a mandatory act, I feel that failure to publish invalidated the subsequent forfeiture proceedings. On that basis, the plaintiff’s petition stated a cause of action with respect to parcel I and the provisions of §5762-1 GC, declaring that no action shall be commenced, nor shall any defense be set up, to question the validity of the title of purchasers at tax sale for any irregularity, informálity or omission in the proceedings relative to the foreclosure or forfeiture, unless commenced within one year after the deed to the property is filed for record, become, in my opinion, inapplicable. The failure of the auditor in this case to make publication as required by §5704 GC, constituted more than an irregularity, informality or omission, in proceedings and notice was withheld to which the landowner was entitled. If the judgment in the forfeiture proceedings was void because of lack of jurisdiction, it can be collaterally attacked. 23 O. Jur., “Judgments” Sec. 988. The other questions raised in the briefs on the basis become irrelevant.
I believe the judgment of the trial court should*be reversed and the cause remanded with instructions to overrule the demurrers and for further proceedings according to law.