It has been written time and again by us that the courts have no inherent power to try contest election cases, and they must look to the statute as the source of whatever power they can exercise in that regard. Section 1596a-12 of the Statutes is the applicable statute governing this case. In my judgment, that section never contemplated that a contestee could attack the vote of the contestant without filing a counter contest. The majority opinion is forced to cite in support of its conclusions some general statements culled from Corpus Juris, but it avoids discussing or attempting to differentiate the case of Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753, decided by this court. In that case, the contestant in his contest proceedings did not attack Ball precinct No. 9. The contestee in his counter contest alleged that the contestant had received illegal votes in that precinct. The trial court determined from the evidence that both contestant and contestee had received illegal votes in that precinct, and deducted the illegal votes from the respective totals of the parties. We held that the trial court erred in deducting the illegal votes in that precinct from the contestee's totals, as the contestant had not relied upon that precinct in his contest. But it may be argued that in this case neither party specified by name the illegal voters, and hence that case is different from this one. The first answer to that contention is that we held in the Sturgill case that the parties by their pleadings had waived the necessity for the names of the illegal voters to be set out. Hence the parties in that case were on the same footing as the parties in this case.
In the second place, the contestee in the Sturgill case himself opened the question of the legality of the votes in Ball precinct. If it was necessary for him to show that he received a majority of legal votes in order to be entitled to the office, as the majority opinion says it was necessary for Roberts to establish here, then certainly, if the majority opinion be right about deducting *Page 580 the illegal votes Roberts got from his total, the court should have deducted the illegal votes the contestee got in the Sturgill case in the Ball precinct.
On the authority of the Sturgill case, I dissent from the majority opinion, and am of the opinion that Roberts was entitled to the office involved.