The opinion
On Appellants’ Petition por Rehearing
LUSK, J.
The petition for rehearing is largely devoted to a restatement of the defendants’ argument in support of the constitutionality of ORS 215.260 prior to its amendment by Oregon Laws 1955, ch 652, § 3 (2). We remain of the opinion that the statute as it then read was unconstitutional, and think that it is unnecessary to restate our reasons.
The petition reiterates a contention not mentioned in our former opinion that, even though the statute be unconstitutional, the formation of the district *197 should be sustained because there is no reason to believe that the result of the election would have been different had non-freeholders voted. Counsel rely on Witham v. McNutt, 186 Or 688 , 208 P2d 459 . The doctrine of that case is that substantial compliance with the requirement of notice in a valid election law governing the holding of a special election is sufficient, particularly so where the record supports the conclusion that had there been a literal compliance the result of the election would not have been changed. But this rule cannot be applied to the case of an election attempted to be held pursuant to an unconstitutional law. Such a law is a nullity, and neither the notice of the election given in accordance with its terms nor the election itself could have any legal efficacy.
The petition for rehearing is denied.