¶1delivered the opinion of the court.
¶2The petitioner, E. D. Hussey, was convicted in the recorder’s court of North Bend, Coos County, for violating the provisions of the local option act as claimed to have been adopted in that county November 8, 1904, by a majority of votes cast in favor of prohibition, and having been adjudged to pay a fine of $50 and to be incarcerated until such amercement was paid, he petitioned the court to be discharged from the restraint thus imposed, on the ground that he was illegally deprived of his liberty. The petition was denied and he appeals.
¶3In the case of Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328), we decided that the vote on the local option act cast in Coos County, November 8, 1904, was void, and as the conclusion there reached is controlling herein it follows that the judgment in the case at bar must be reversed, and the cause remanded, with directions to discharge the prisoner; and it is so ordered.
¶4Reversed.