98 P. 158 | Or. | 1908
Opinion by
The right of plaintiffs to maintain the suit is settled by Marsden v. Harlocker, 48 Or. 90, (85 Pac. 328: 120 Am. St. Rep. 786), and by the recent case of Hall v. Dunn, 52 Or. 475 (97 Pac. 811), and therefore the only question necessary for our consideration at this time is whether the election was invalid, because of the failure to give notice thereof as required by law.
The local option law (chapter 2, p. 41, Laws 1905) provides that whenever a petition therefor, signed by not less than 10 per cent of the registered voters of any county, or subdivision or precinct thereof, shall be filed with the county clerk in the manner prescribed in the act, the county clerk shall order an election to be held at the time mentioned in such petition to determine whether the
The courts are practically unaminous that, where the object of an election and the time and place are provided by general law, the requirement as to notice is directory, and a failure of the officer charged with the duty of posting or publishing such notice to discharge his duty in that regard will not invalidate the election, and it seems equally as well settled that, if the time of the election is to be fixed by some public authority, after the happening of some condition precedent, or if some special question is in like manner to be submitted to the voters at a regular election, the law authorizing such election, or the submission of such question, and providing for notice thereof, must be strictly followed. Cooley, Const. Lim. *603; Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328: 120 Am. St. Rep. 786) ; George v. Oxford Township, 16 Kan. 72; Demaree v. Johnson, 150 Ind. 419 (49 N. E. 1062: 50 N. E. 376) ; Stephens v. People ex rel. 89 Ill. 337. The reason for this distinction is that every voter is presumed to know the law and be thereby informed, as to the time when, the place where, and the officers to be elected, or matters to be determined at a general election, held in pursuance of a public statute, and thus to be fully advised in the premises; but where the elec
It is said that no substantial injury resulted in the case under consideration from the failure to post the notices as required by law, but this can never be known. There was, in fact, less votes cast on the question of prohibition than for some of the county officers, and there is no means of determining how many voters did not attend the election who would have done so if they had been advised that such question was to be submitted.
The decree of the court below is reversed, and one entered here as prayed for. Reversed.