the following dissenting opinion.
I am unable to agree with the conclusion reached by the learned Chief Justice as to the effect of the failure of the sheriff to post the required number of notices in Kamela precinct. The law requires that five notices be posted in each precinct at least twelve days before the election. In this instance but three were posted in Kamela precinct, and it is held that posting of notices in each precinct was designed to advise the voters of only that precinct that an election would be held therein, and not to inform the voters of some other precinct. Hence the conclusion that a failure properly to post the required number of election notices in a given precinct ought not to affect the vote in the entire county, unless the number of votes in such precinct would probably affect the general result. And because the majority for prohibition in the entire county was relatively large as compared with the total' registered vote in Kamela precinct, it is argued that it is not reasonably probable that the absence of notice affected the general result. This line of reasoning treats the failure to give notice merely as an irregularity which would render the election voidable it substantial injury resulted, and *248not per se void. The conclusion reached in the main opinion is opposed to the principle of law announced by this court in Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328: 120 Am. St. Rep. 786), and in Guernsey v. McHaley, 52 Or. 555 (98 Pac. 158). In the former case it was held that in special elections a compliance with all the statutory requirements in respect to the performance of the conditions precedent is mandatory in order to validate the election. The latter case followed and expressly approved of that declaration, citing ex parte Conley (Tex. Cr. App.) 75 S. W. 301, as supporting such pronouncement of the law. This is a Texas case which arose under the. local option law of that state, from which the law of this State was borrowed. Mr. Chief Justice Bean, who wrote the opinion in Guernsey v. McHaley, understood the Texas court to hold “that an election under the local option law was void when it appeared that all but one of the notices had been posted the required length of time, and the election had been fair, and no actual injury resulted on account of the failure to give the requisite notice, for the reason that the lawmaking power had seen fit to provide the- prerequisites of a legal vote, and the court could not disregard or dispense with any of them.” An examination of the opinion in that case shows this interpretation of it not only to be correct, but the conclusion reached is emphasized by that court in this language: “If the failure to post notices * * renders the election void, then the fact that it may have been fair, and that no actual injury resulted in the failure to comply with these prerequisites of the law, cannot render the law (election) valid.” If the requirements of the law in respect to the making of an order by the county court and the posting of notices by the sheriff are mandatory, then the strict performance of them is essential to the validity of the election, and the question of material or substantial injury flowing from the *249omission of either is not material. It is only when the thing to be done is merely directory, and the omission thereof renders what follows voidable and not void, that the question of substantial injury is material to be considered. It is upon this distinction that the conflict in the cases has arisen. Those holding to the doctrine that the provisions of statutes requiring a particular form of notice for the holding of special elections are mandatory and must be strictly followed have been cited and followed in Marsden v. Harlocker, and Guernsey v. McHaley, and some of those holding to the opposite opinion aré now cited in support of the majority opinion in this case. In State v. Doherty, 16 Wash. 382 (47 Pac. 958: 58 Am. St. Rep. 39, 43), it was held that the particular form and manner pointed out by statute for giving notice is not essential, following the previous holding of that court in Seymour v. Tacoma, 6 Wash. 427 (33 Pac. 1059), to the effect .that the formalities of giving notice, although prescribed by statute, are merely directory, unless there is a declaration that if the formalities are not observed the election shall be void. In Wheat v. Smith, 50 Ark.-266 (7 S. W. 161, 165), it is said, immediately preceding the excerpt quoted therefrom in the majority opinion, that “the particular form and manner pointed out by the statute for the giving of notice is not essential;” that is, it is merely directory. I can agree with Mr. Dillon’s quoted remark that it is now a canon of election law that an election is not to be set aside for a mere informality or irregularity which cannot be said in any manner to have affected the result of the election” — but the question upon which we differ is whether the failure to give notice is an “informality or irregularity.” That author, in 'the text just above the footnote from which the excerpt is taken, says: “If the time be not defined by statute, and is to be fixed by notice, the notice required is imperative.” Believing that the notice required by the statute in this case was *250essential, and that the failure to post the notices rendered the election void as to the particular matter in question, the decree should be reversed, and an order of injunction issued.
Mr. Justice King concurs in this dissent.