delivered the opinion of the court,
This case is brought before us to review the action of the court in refusing to certify that there was probable cause for contesting an election, purporting to have been held at a time when no valid election could be held: Walsh v. Commonwealth ex rel. Evans, 8 Norris 419, and in its further refusing to order the county to pay the fees of the commissioners for services rendered in taking evidence in the alleged contest.
It may be conceded that the commissioners have a meritorious claim, and that they in serving, and the court in appointing them, acted under what they supposed to be an undoubted right. In the s present aspect of the case, the question is one of power. Unless the statute makes the county liable for the fees and costs, the court cannot impose them on it. To make it liable, two things must concur, there must have been an election held at a time and place authorized bylaw, and the question be between opposing claim-ants. Even then if the judge shall decide that the complaint is without probable cause, the county is not liable to pay the costs and fees of the contest.
As this pretended election was without any authority of law, it has none of the legal incidents of a valid election. There was no election, and therefore was no legal contest. The eomplaint was, in law, without any probable cause. The county is not liable for any of the costs and fees of the commissioners in the proceeding. The learned judge was correct in refusing to impose them on the county.
This case should have been certiorari instead of error. We now order it to be so changed, and
Judgment affirmed.