I dissent from the majority opinion in so far as it states the law in two important particulars. I consider those statements to be not only in conflict with previous rulings of the court but inconsistent with each other in principle. The correct interpretation of the law on either point, according to my view, would and should result *Page 388 in a reversal of the judgment, with directions to enter another to the effect that a majority of the voters had favored prohibiting the sale of intoxicating liquor in Bell County.
The first ground of dissent is from the conclusion that the trial court properly permitted the filing by the contestants (to whom I shall refer as the Wets) of an amended petition stating grounds of contest 49 days after the time limit provided by the statute. The second ground of dissent is from the approval of the action of the trial court in rejecting an amendment offered by the contestees (to whom I shall refer as the Drys) withdrawing certain allegations from their counter contest.
1. Separate paragraphs of the contest petition, filed June 23, 1945, related to each precinct of the county. In some of them it was merely alleged that the persons named "had no legal right to participate in said election." In some of them it was only charged that the named persons were "not legal voters in said precinct." In some of them, that "the following voters cast ballots in favor of prohibition when they were each illegal and unqualified voters." The favorite allegation was that the named persons "had no legal right to vote in said precinct." I think they were allegations of the pleader's conclusion of law with respect to the parties named. A pleading consisting only of legal conclusions raises no issue of fact.. Gay v. Johnson County Board of Education, 205 Ky. 277,265 S.W. 772. These allegations do not state causes of action; do not state facts from which the court could determine the sufficiency of the grounds as a matter of law. It is conceded by the majority opinion that they were demurrable. A pleading is demurrable only when fatally defective — when it states no cause of action at all. Of course, in the ordinary civil action, new life may be breathed into a pleading by amendment (in the discretion of the court) after it has been killed by the sustaining of the demurrer. In this case the failure to state a cause of action was the failure to set up grounds of contest, and that could not be done after the expiration of thirty days from the election. KRS 122.070, quoted in the opinion. Nor enlarged, as shown in the later discussion of the cases.
The contestants recognized the deficiency of their original pleading, and 79 days after the election and 49 days after the deadline fixed by the statute, the court *Page 389 permitted them to file an amendment properly setting up causes of action. Under the statute they should have completed taking evidence in chief 21 days before this amendment was tendered. The amendment is put in the category of curing the defective pleading by making the allegations more definite and specific. That is the remedy when a pleading is subject to attack because its averments are vague or are general statements of fact. A motion to make more definite and specific, or, as in the instant case, permission to file an amendment voluntarily offered to that end, presupposes the existence of a pleading of some fact in a general way. Such an amendment may cure an imperfect pleading — not a fatally defective one. The pleader then presents a fuller statement or his cause of action. He does not supply a cause of action when none had been previously stated. Reid v. Lyttle, 150 Ky. 304, 150 S.W. 357; Daniel v. Daniel, 166 Ky. 182, 179 S.W. 5; Barnett v. Latonia Jockey Club, 249 Ky. 285, 60 S.W.2d 622.
Here the court holds the parties cured the incurable, the remedy having been applied 49 days too late.
I will now turn to the election contest law.
It is laid down in 29 C.J.S., Elections, Sec. 268 (3), page 378: "In a statutory proceeding to contest an election, theinitial pleading, whether it be termed a declaration, complaint, petition, or notice and statement, must allegefacts which constitute a ground of contest under thestatute." (Emphasis added.)
In Combs v. Brock, 240 Ky. 269, 42 S.W.2d 323, 326, concerning general allegations, where neither factual grounds nor names of voters were given, it is said: "We have consistently held that when such elimination of votes from the number certified forms the ground of contest, the names of such illegal voters, as well as the facts constituting theirdisqualification, MUST be alleged." (Emphasis added.)
In Gross v. Cawood, 270 Ky. 264, 109 S.W.2d 597, it was held that a motion to strike was properly sustained to portions of the petition "wherein it was alleged that illegal votes were cast in the several precints named therein, and where other irregularities of the officers of the election were alleged." (Emphasis added.) *Page 390
In Brock v. Williams, 260 Ky. 569, 86 S.W.2d 324, 325, the court held that the demurrer was properly sustained and an amended petition making the allegations of the original more definite and specific was properly rejected. The contestant had alleged "in general terms" without names, "that a large number of persons voted openly and publicly; that there was stuffing of the boxes; that there were large numbers of unqualified persons who were permitted to vote, and, in several precincts, that voting was permitted both before and after the hours fixed by statute for keeping the polls open." Said the court: "Each of these allegations was in general terms, and none of the names of the voters was stated, although it will be readily observed that each of the grounds alleged went to the question of legality of the votes cast."
And further, "Clearly, to uphold such general allegations would be in effect to ignore or nullify the requirements of the statute as heretofore construed by this court."
As indicated in the majority opinion, we have many cases holding that after the expiration of the time limit set by the statute for filing a contest, the contestant may not amend his pleading to add the names of voters under sufficient allegations of fact constituting grounds of contest; such as, that a number of voters had voted openly without having been sworn as to their infirmities, etc. This is because such original allegations are too general. They are so general and so fatally defective, that a demurrer or a motion to strike a particular paragraph thus setting them up is properly sustained, although it had been charged originally that every vote in the precinct was cast illegally. Jackson v. Bolt,292 Ky. 503, 166 S.W.2d 831, which is a Harlan County local option election contest.
In Dance v. Anderson, 288 Ky. 431, 156 S.W.2d 463, 464, another local option election contest, it was declared that such general allegations were "baseless" and "too vague and indefinite to constitute a ground of contest." Our latest opinion on this point is Bennett v. Cavanah, 300 Ky. 655,190 S.W.2d 17. The question there was whether an amended petition definitely stating names of voters under specific allegations of illegality was a new ground of contest. Reviewing previous decisions, they were adhered to and it was again held that *Page 391 such an amendment did set up enlarged or new grounds. If bringing in additional illegal votes into the proof is anew ground, why is not bringing in allegations offacts constituting grounds new? The pleader may have just put in his original petition a blanket charge of "illegal votes" without having any specific character of illegality in mind, intending later to find some — just as is the expectation to find some additional illegal voters. To fill in the grounds originally omitted is just as much an "enlargement" of grounds pleaded as is the adding of names.
It seems to me wholly illogical to say, on the one hand, that omitting names of the voters coming within a statement of facts constituting a ground of contest is fatally defective and not capable of being made more specific after the deadline has fallen, and on the other hand to say and hold to be otherwise a reverse situation where the names are given of persons who it is merely charged "had no legal right to participate in said election," but omitting altogether the reasons why. It seems to me to be wholly illogical to say that in the first class of cases the belated giving of the names sets up a new ground of contest but in the second class the belated giving of facts of illegality of named persons is not a new ground of contest. If the one ruling is right, the other is bound to be wrong.
The same principle of law and the purpose of it are present in each class of cases; namely, that the adverse party may be informed definitely and specifically, so that he may know what he has to meet and that he may prepare his defense promptly, as he is required to do under the contest law. Time is short and of the essence. There were 422 different persons in 33 different precincts listed under these general charges as illegal voters. Should the contestees have prepared to meet evidence that any or all of those persons were nonresidents of the precinct? Or under age? Or not registered? Or felons? Or had voted across the table? Or had exposed their ballots? Or any of the other disqualifications or conditions or acts which would make their votes illegal? Whom should the contestees have searched for, or summoned as witnesses on these points, not knowing upon what ground any of those 422 persons were claimed to have cast illegal votes?
The majority opinion erases according to my view, *Page 392 from the books a large flock of cases to the contrary. It sanctions a method for evading the statute. It authorizes an entirely new fleet of fishing expeditions. I apprehend that under the license granted by the opinion, future contestants who have no knowledge of any grounds of contest will make similar blanket allegations or state similar general conclusions of law, and follow it with many names, whether those persons were under suspicion or not, in the hope of being able to find one or more grounds for successfully eliminating their votes, and some time along the way — perhaps even longer than two months and nineteen days, as here — then set up grounds of contest by amendment.
The case of Johnson v. Little, 176 Ky. 505, 196 S.W. 156, Ann. Cas. 1918A, 70, is cited to sustain the majority opinion. The writer of this dissent wrote that opinion. I do not think it is controlling; but if I am wrong in this thought, then the opinion should be overruled to that extent. The point was a trivial one in a trifling case. The case involved the election of a subdistrict school trustee. Under the law then prevailing, such elections were held at the school house on a Saturday afternoon. The voters then and there chose a judge and a clerk as election officers and voted viva voce. The law permitted women to vote in such elections if they could read and write and possessed the constitutional qualifications. It was alleged in the contest petition that certain named persons could not read and write but had voted for the election officers and the trustee. A recent examination of the record shows that these persons bore the names of Mary, Esther, Cordia and other female names, which were sufficient in and of themselves to identify the persons as women. An amended petition merely stated that they were "females," which allegation had been inadvertently omitted. The court held that the amendment was properly filed although the time for filing a contest had elapsed. It was unnecessary. In any event the same result would have been reached in that case had the point been decided otherwise.
Here we have no trivial matter and no trifling case. It is a decisive point. The election was upon an important public, moral issue which affected every man, woman and child in Bell County. There have been two or three local option elections there. The many cases reaching this court, and a number of others before its members *Page 393 upon motions relating to temporary injunctions and not reported, reflect the long trail through the courts, with the pace tragically slowed down by dilatory tactics and tangled obstructions, to obtain the prohibition of the sale of intoxicating liquors.
2. I am also of the opinion that the trial court committed an error in rejecting the amendment to the countercontest of the Drys, withdrawing certain allegations. During the long course of taking many depositions, 27 persons whom the Drys had charged voted wet illegally, as specifically described, testified that they had voted dry. I have no doubt that many of these persons did not tell the truth. Thus, one woman who was employed as a barmaid in a roadhouse and worked at the polls for the Wets, when proved to have voted without legal right, testified that she had voted dry because she was asked to do so by some unidentified preacher. It is hard to believe that with the diligence, zeal and energy with which the Wets had prepared and fought the contest — going through every precinct with a fine tooth comb — they would have overlooked this many illegal dry votes. It is hard to believe, on the other hand, that the Drys, also alert and active, did not have substantial reasons to believe that these persons had voted wet before they challenged their votes in their verified pleading. They might have been mistaken in a few instances, but not en masse. When the taking of depositions had been completed, and while the parties were filing exceptions to them and otherwise getting their case in order, the Drys tendered an amendment to their countercontest, withdrawing their allegations as to those 27 whom they had challenged, but which the Wets had not done. An order of September 18, 1945, recites that the motion of the Drys to submit the case was passed for later consideration. The case was kept open for the filing of amendments, depositions, exceptions and briefs. No order formally submitting it was ever entered. An entire month elapsed after this amendment was tendered before the judgment.
In Hodges v. Murray, 240 Ky. 127, 41 S.W.2d 923, 926, the same situation confronted a contestant. This court showed him how he might have escaped the dilemma by saying that he might have withdrawn his charges by amending his pleading. In doing so the court laid down a rule of practice for future litigants. It is true that it *Page 394 is said in this connection that, "A litigant can at any time before final submission withdraw a pleading or a part of a pleading." That is ordinarily the time for amending a pleading or taking other preparatory action. But the court did not say, or even intimate, that unless the motion was made before submission it could not be sustained. To have done so would have been right in the face of section 134 of the Civil Code of Practice and a multitude of decisions. In Campbell v. Combs,273 Ky. 404, 116 S.W.2d 955, 957, a local option contest, it is said: "The rule of practice whereby the court may at anytime permit amendment of pleadings in the furtherance of justice, section 134, Civil Code of Practice, is applicable in election cases unless some new cause of action or additional ground of contest is set up after the period of limitations." (Emphasis added.)
In Adams v. Helton, 296 Ky. 9, 175 S.W.2d 1012 (one of the several local option cases from Bell County), it was held specifically that in an election contest the petition may be amended at any time, even after the expiration of the thirty days provided for filing a contest, in order to perfect a ground of contest imperfectly set up originally. A distinction is there noted between other amendments and those setting up new or additional grounds of contest, which, it is pointed out, must be within the thirty day period.
In the present case the filing of this amendment clearly came within the rule always followed to permit a litigant to amend his pleading at any time before judgment in order to have it conform to the proof.
The right to file an amended pleading after the adversary has responded to the original is not an absolute one, of course. Nor is the authority of the court in respect thereto a matter of arbitrary decision. It is a discretion that is to be exercised reasonably, fairly and impartially. The record shows that the Wets were supposed under the statute to have completed their proof in chief on July 23. They were permitted to file three different amended petitions after that date. One on July 28, 63 days after the election, withdrawing certain paragraphs of their petition and seeking to add names of persons charged to have voted dry illegally. Another was filed on August 13, 79 days after the election, which I have already discussed. Another was filed on November 23, 181 *Page 395 days after the election, transferring from one precinct to another certain alleged illegal dry votes.
I think there was a grievous abuse of judicial discretion in refusing the amendment of withdrawal tendered by the Drys.
There is an old saying, "What is sauce for the goose is sauce for the gander." That is a pretty good and certainly a fair rule of consistency to be observed in the trial of a lawsuit by both the trial court and the appellate court. The filing by the Wets of the amended petition setting up grounds of contest or, as the majority say, curing a fatally defective pleading, was, in my view, right in the teeth of the statute forbidding it. The rejection of the amendment offered by the Drys withdrawing certain allegations was also right in the teeth of an opinion of this court authorizing that to be done when that specific authority is read in connection with other decisions in local option election contests. This court should not refuse to look at the realities of the situation in Bell County and so apparent in this case. It should not refuse to regard all the specific conditions displayed in the record, and all the circumstances, lights and shadows so apparent in it.
I therefore respectfully dissent, in which Chief Justice Rees concurs as to the first ground.