delivered the following dissenting opinion.
I agree with the majority opinions in holding that the alternative writ does not state sufficient facts to entitle petitioners to the relief demanded, but for that reason only do I hold that the remedy sought to be invoked will not lie. The effect of the majority opinions, however, is to hold that, even though sufficient facts were stated to demonstrate that the election was void, mandamus would not be the proper remedy. With this conclusion I do not agree. If at the time the proceedings were instituted the county court had not declared the vote, injunctive relief would have been available, but, since there is nothing left, so far as the court is concerned, to enjoin, this remedy, it occurs to me, cannot well be invoked. In fact it is so held in McWhirter v. Brainard, 5 Or. 426. Under the holding of this court in Raper v. Dunn, 53 Or. 203 (99 Pac. 889) and Garrison v. Malheur County Court, 54 Or. 269 (101 Pac. 900), review will lie, from which it follows that, unless the remedy by *266mandamus is available, petitioners are without a remedy. In a very clear and well-reasoned opinion by Mr. Justice Brannon, in Marcum v. Pilot Commissioners, 42 W. Va. 263 (26 S. E. 281: 36 L. R. A. 296), it is held that the inefficiency of all other remedies required that mandamus should be recognized, even though the acts involved were of a quasi judicial nature. If the rule invoked by the majority in this case is to prevail, it may become necessary to recognize a suit in equity to vacate the order of the court as the proper procedure, else make an exception to the well-established principle suggested by Mr. Justice McBride that “there is no wrong for which the law does not afford a remedy,” but why the necessity of further drawing upon a court of equity, when the same result can as readily and conveniently be accomplished by the proceeding before us? It is true petitioners have sought an adjudication to the effect that Vale is without the operation of the local option statute, and this court has held that the charter does not have the legal effect insisted upon in that respect; and in that I concur, but let it be remembered that the further position is taken, and so attempted to be pleaded, that the election in the entire county is void, and it is conceded that, if sufficiently pleaded, the position would be well taken. This could be done by amendment, to allow which is within the discretion of the court where pending; and I know of no reason why the same privilege should not be granted the petitioners in this respect as was extended to the pleaders in a like case: State v. Richardson, 48 Or. 309 (85 Pac. 225: 8 L. R. A. [N. S.] 362) ; and also recognized in Fishburn v. Londerhausen, 50 Or. 363, 377 (92 Pac. 1060, 1065: 14 L. R. A. [N. S.] 1234, 1242) and Powell v. Dayton, 14 Or. 22 (12 Pac. 83). Nor can it make any difference that the prayer asks relief as to the town of Vale only; for, if the election in the entire county is void, it must necessarily be ineffectual as to *267the lesser district, Vale, regardless of whether the language of the charter is sufficient to take the locality out of the operation of the local option law or not. The question, therefore, as to the effect of the charter upon the general law, when viewed in connection with the other points presented, becomes unimportant. But conceding that the effect of the language of the charter was one of the question to be determined by the county court in connection with other features, before declaring the result of the vote, I think the acts of that body are ministerial only, and cannot properly be classed as judicial. Nor can the fact that one of the members is a judicial officer make any difference in this respect. It is nothing unusual for ministerial duties to be imposed by statute upon judicial officers, the performance of which often requires the application, and thereby the interpretation, of laws. As stated by the court in re Harris, 12 Misc. Rep. 228 (33 N. Y. Supp. 1106) : “It is not every exercise of judgment by a ministerial or administrative officer or body that can be held to be the exercise of a judicial function or judicial act. A sheriff is required to determine, at his peril, whether a process he is required to execute is fair upon its face, but such exercise of his judgment is not a judicial act.” To the same effect, Speer v. Stephenson (Idaho) 102 Pac. 365, 371; State v. County Judge, 7 Iowa 187.
It is unnecessary, however, to look beyond our own jurisdiction for authorities upon this subject. As above stated, this court in McWhirter v. Brainard, recognized mandamus as the proper remedy to test the qualification of voters, the legality of the conduct of judges, as well as other matters incidental to the canvass of an election called to determine the selection of a county seat, notwithstanding these questions involve some intricate points of law, or mixed questions of 'law and fact. So, too, in Shively v. Pennoyer, 27 Or. 33 (39 Pac. 396), the same remedy was invoked to compel the execution of a deed *268by the board of land commissioners, in which instance it was first necessary to determine whether the applicant had complied with the requirements of the law on the subject. State v. Malheur County Court was a special proceeding instituted against the county judge and commissioners to compel them as a court to declare the result of an election held November 8, 1904, for the purpose of determining whether the sale of intoxicating liquors as a beverage should be prohibited in Nyssa precinct. The county judge in his answer expressed a willingness to make the order sought to be enforced, while the commissioners after denying the material averments of the writ, alleged, among other things, that the local option act contravened certain clauses of the constitution of the State, and that the notices of the election were not printed until 16 days prior to the election. It thus appears that there were questions to be determined by the county court in that case equally as judicial as any involved here. In considering that phase, Mr. Justice Wolverton, in State v. Malheur County Court, 46 Or. 519 (81 Pac. 368), holds the duties of the court in this regard to be ministerial only. I think, therefore, the conclusion reached on this point by the majority, inconsistent with all previous adjudications by this court upon these points.
In conclusion, I understand the majority to hold, in effect: (1) The county court in declaring-the result of a local option election acts in judicial capacity, by reason of which mandamus will not lie; and (2) even were it successfully averred that the election was void, petitioners have mistaken their remedy. I think the holding as to both positions in conflict with the previous adjudications on the subject. If the majority opinions in this case and in Roesch v. Henry, 54 Or. 230 (103 Pac. 439), are to stand, all previous decisions by this court bearing on the subjects therein discussed should, in order that there may be no further misunderstanding among the courts and bar upon the subject, be given a respectable *269burial by expressly overruling them. I think sufficient doubt as to the correctness of the conclusions reached exists to justify a rehearing in this court, and that it should be so ordered.