Dissenting Opinion by
Judge Hannah.In so far as the opinion of the majority of the court rests upon and re-affirms the ruling (1) that the petitioner for a local option election may withdraw his name therefrom at any time before the order is entered calling the election; and in so far as it rests upon and reaffirms the ruling that (2) persons opposed to the calling of the election are entitled, as a matter of right, to an opportunity to present proof as to the sufficiency of the petition; and, from so much of the opinion as announces the holding that (3) where there have been new petitioners substituted in the place of original petitioners who have withdrawn, the petition must necessarily be laid over to give those opposed to the calling of the election an opportunity to ascertain whether any of the substituted names are those of unqualified persons, I dissent therefrom.
1, Why should a petitioner be permitted to withdraw his name from the petition 1 In the opinion of the majority of the court, this ruling is attempted to be justified upon three grounds: First upon the ground stated in the ease of O’Neal v. Minary, 125 Ky., 571, 30 R., 888, 101 S. W., 951, in which case this court first announced the ruling that a petitioner may withdraw his name at any time before the order is entered calling the election, viz: that because the petitioners are responsible for the costs of the “proceeding,” they should be permitted to withdraw. For the costs of what “proceeding” are they *23responsible? Were it not for the rulings of this court permitting petitioners to withdraw their names, and permitting, as a matter of right, those opposed to the calling of the election to present proof as to the sufficiency of the petition, there would be no “proceeding;” consequently no costs. The statute does not provide for, nor contemplate the incurring of any costs before the entry of the orders in the order-book by the clerk, calling the election; and section 2559, Kentucky Statutes, specifically provides that an amount sufficient to cover all costs that may be incurred must be deposited with the county judge before the order calling the election may be entered.
There is no authority in the statute for such withdrawal of the names of petitioners, nor for such attack upon the sufficiency of the petition by those opposed (hereto. But, in the majority opinion, this court, while admitting that express authority for such withdrawal is not to be found in the statute, attempts to justify the ruling permitting withdrawals', upon the second ground, that such is an inherent and natural right, the exercise of which is to be implied from the statutory right to sign the petition for the election. I concede that while the petition is in the hands of the petitioners, they may wihdraw, but when it is filed, the interests of the public generally attach thereto, and petitioners should not be permitted, in the absence of statutory authority, to trifle with the court, or betray their co-petitioners by withdrawing their names therefrom, as was done in this case.
There is nothing obscure nor complicated about a petition for a local option election. Every man who signs such a petition knows its import. Because of that knowledge, he should not be permitted to play fast and loose with the court and with the other signers. When the petition is filed, his right to withdraw therefrom should terminate. To hold otherwise, is to pervert the legislative intent, to add to the statute that which it does not contain, and to open the door to treachery, corruption and fraud. It is the province of courts to construe legislation, not to legislate; to interpret the law, not to create rights.
Again, if as stated in the majority opinion as a third ground of justification for the ruling permitting peti*24tioners to withdraw, a petition for a local option election initiates a “proceeding, having parties” within the meaning of section 134, Civil Code, then the end of that proceeding must be a judgment; and as the statute makes no provision for an appeal from the finding of the county judge as to the' sufficiency of the petition, that judgment must be final. And the vital point determined in that controversy between the parties, that is, 'between those petitioning for and those opposed to the calling of the election, is the sufficiency of the petition.
This court, therefore, by holding that the determination of the sufficiency of the petition by the county judge is a proceeding having parties within the meaning of Civil Code, section 134, and is not an ex parte proceeding, is placed in the attitude of -holding that the sufficiency-of a petition for a local option election may be attacked before the county judge, by those opposed to the calling of the election; that after a judicial determination of the sufficiency of such petition by the county judge upon a hearing in which those opposed thereto are entitled, as a matter of right, to a reasonable opportunity to present proof upon the vital question involved, that, that same vital question of the sufficiency of the petition may again be litigated and again adjudicated upon contest proceedings, despite the former adjudication.
Moreover, where a court judicially considers and adjudicates the question of its own jurisdiction (and this court has held the question of the sufficiency of the petition to be, and it is, a jurisdictional fact) and decides that the facts exist which are necessary to confer jurisdiction, that finding is conclusive, and may not be controverted or assailed in a collateral proceeding. 23 Cyc., 1088
This court is also in the attitude of holding that notwithstanding the fact that the decision of a court upon the question of its own jurisdiction cannot be collaterally attacked, the sufficiency of a petition for a local option election and the consequent jurisdiction of the county court judge to enter the order calling the election, may again be litigated and determined upon collateral attack in contest proceedings instituted under the statute.
I take it to be self-evident under the law, that, either the determination of the sufficiency of the petition by *25the county court judge must be ex parte, and, therefore, not conclusive, and because ex parte, it is subject to collateral attack; or, that such sufficiency cannot be questioned collaterally upon contest proceedings.
In Howard v. Stanfill, 31 R., 207, 102 S. W., 831, this court held that where the county judge states that he has personal knowledge of the residence of the petitioners and of the fact that they constitute 25 per cent of the voters of the precinct, he is not required to hear evidence as to the sufficiency of the petition.
In McAuliff, et al. v. Helm, et al., 157 Ky., 626, this court said that “the county judge had a discretion as to trying the application in so far as it applied to the verification of the petition.” In that case, the appellants insisted that the petitioners were trying to “railroad” the petition through without a hearing from the opposition, and those opposed to the calling of the election moved the court to continue the matter until the next regular term; and that motion having been overruled, they then moved the court to continue it for three days; and that motion having been overruled, they then moved the court to require oral proof in court subject to cross-examination, upon the question of the authenticity of the signatures, and the qualifications of the petitioners; and that motion having been overruled, they then moved the court to grant them thirty minutes to examine the petition of each of the twenty precincts as it should be called, and this motion was also overruled. It was fully shown by the record in that case that the petitioners were trying to “railroad” the petition through (as they had a right to do) and that opinion says: “He (the county judge), had jurisdiction to pass upon the question before him; if he erred, his ruling is not void, but erroneous only, and can be corrected by contest proceedings where the sufficiency of the petition is still subject to review.” Gould it be more clearly or more forcibly stated than this language imports, that the proceeding before the county judge is an ex parte proceeding, and that the county court judge cannot be interfered with as to the manner which he may choose to adopt, to ascertain and determine the sufficiency of the petition? If the whole matter can again be opened up, what rule of law is there to prevent the county judge from going to his room, and locking himself therein, and alone, and there making the ex*26amination which, satisfies him of the sufficiency of the petition?
This brings us to the question:
2. Why should those opposed to the calling of the election be entitled as matter of right to an opportunity to present proof as to the sufficiency of the petition.
The statute does not so provide; and a reasonable interpretation of the section involved will force one to the conclusion that had the Legislature intended that there should be a contest before the county judge, before the election is ordered, the number and qualifications of those having such right to attack the sufficiency of the petition, would have been fixed by the statute, as is done in that section which provides for a contest of the election.
Section 2566, Kentucky Statutes, provides that there shall be at least ten citizens and legal voters of the county, city, town, district and precinct, to maintain contest proceeding after the election has been held. Unless there are as many as ten contestants, and unless they are all citizens and legal voters of the territory to be affected, there can be no contest proceedings instituted. And if a contest is instituted, unless there are as many as ten contestees, and unless they are citizens and legal voters of the territory to be affected, there can be no resistence of such contest. Under the majority opinion’s rule of fairness, there is nothing to prevent one legal voter from appearing before the county judge and as a matter of right, resisting the making of an order calling such election. (In the case at bar, the record shows only three opposers in the county court.)
It is true that it is said in the majority opinion that “conceding that the legal ‘voters’ who petition for the election have the right to act for the public as well as for themselves in asking that it be called, it is but ‘fair’ to conclude that the legal voters opposing the calling of the election have an equal right to act for themselves and the public in showing that those signing the petition are not legal voters of the precincts in which they claim to reside. ’ ’ But it fails to limit the number who may do so, and the opinion must under our Code be construed ' to mean that one voter may so oppose the calling of the election.
*27If this court, in construing statutes, is to create rights not provided for by statute, because the statute failed to be fair in this particular, then it should treat those opposed to the calling of the election with the same kind of fairness as that with which the statute treats those in favor of calling the election; and the court should say to those opposing the election, that, inasmuch as the statute requires 25 per cent of the legal voters to sign a petition for the election before it can be ordered, it is but fair that you who are opposed to the election should be required to have 25 per cent of the legal voters sign a protest before you shall be heard' as matter of right, before the county judge.
It seems to me that had the Legislature intended that the examination of the sufficiency of the petition by the county judge should be anything but ex parte, we would find express provision therefor in the statute, in the same manner as we find therein provision for contest, viz.: that not less than ten legal voters of the territory affected shall have the right to contest such election after it has been held, and not less than ten legal voters of said territory may appear to resist the contest.
The statute does not provide that any one, as a matter of right, may attack the sufficiency of the petition before the county judge; but it does provide for a contest of the election, and upon that contest, want of jurisdiction of the court to enter the order calling the election, because of the insufficiency of the petition is ground for invalidating the election. This court has so held.
Shall there be two adjudications of the same question? Shall the sufficiency of the petition, a jurisdictional fact, be attacked and determined before the county judge in a proceeding not provided for by statute, but in which, under the rulings of this court, those opposed to the election may as a matter of right be heard, and then, when such sufficiency of the petition is determined upon such proceeding, shall the same question be again litigated upon collateral attack by the same parties, and again determined judicially upon contest proceedings?
As I read the statute and interpret the legislative intent, when the petition is filed and the proper deposit of money is made, and when the county judge is satisfied that the petition is sufficient, no matter how he arrives at that conclusion, the requirements of the law are fully met, so far as he is concerned. If, in fact, the petition is *28' not sufficient, that insufficiency may be shown upon the contest proceedings as provided for by statute.
I am aware that the statute provides that the order calling the election shall not be entered until the next regular term after the filing of the petition; but, in the absence of anything to the contrary in the statute, I am justified in believing it to be the legislative intent that such interval is solely for the purpose of enabling the county judge to consider the petition, and to reach his decision as to the sufficiency thereof in such manner as he may desire.
Believing as I do that the two rulings of this court just considered are unsupported by statutory authority and unjustified by necessity; that in announcing them the court has departed from the legislative intent; that the enunciation of these rulings has been productive of much harm and no benefit; that the form of proceedings which under these rulings of this court has gradually grown up in this State, has become such as no court should tolerate; that in adhering to its original error, this court is being forced to the adoption of still more untenable rulings, as is illustrated in the present majority opinion, I feel that it is time we return to the legislative intent, and relegate to the contest proceedings provided for by the statute, all questions as to the sufficiency of the petition for a local option election.
3. I also, as stated, dissent from the opinion of the majority of the court in so far as it announces for the first time the ruling that when new names are substituted upon the petition in lieu of the names of petitioners who have withdrawn, the petition must necessarily be laid over to give those opposed, an opportunity to ascertain whether the new names are those of. qualified voters.
Of course, if it were rightly held that those opposed lo the calling of the election are entitled, as a matter of right, to attack the sufficiency of the petition before the county judge, then, they would impliedly be entitled to a reasonable opportunity to make such investigation; but. believing as I do that the sufficiency of the petition may only be attacked as a matter of right, by contest proceedings, it goes without saying that I dissent from this extension of the court’s original error. The untenability of the positions which this court is gradually being forced to adopt by its adherence to its original error in the O’Neal case, is here exemplified.
If, as this court rules, the petitioner for a local option election may at any time before the order is entered call*29ing the election, withdraw his name from the petition; then, while the petition is being laid over to give those opposed thereto an opportunity to investigate the qualifications of the new or substituted petitioners, other petitioners may withdraw their names. In their stead, then, still other new names must be substituted, and ■ when this is done, under the rule announced in the majority opinion, the petition must again be laid over to give those opposed thereto an opportunity to investigate the new signers. So, under the rule just announced, this could be carried on indefinitely. We are thus presented with the spectacle of one departure from the legislative intent leading to another, and where the end shall be is uncertain.
No stronger illustration of this deplorable situation is needed than is presented in the few examples noted in the opinion in the case of McAuliffe v. Helm, supra, out of the many contained in the record, in which it is shown that a number of the signers of the original petition first withdrew, then revoked their withdrawals; the evidence showing that one of them readily signed every paper that was presented to him, and that on the witness stand, he answered almost every question by saying “wet.”
Again, I say, it is the duty of this court to take the statute as it is found; to construe it as it is found; to add thereto nothing; to take therefrom nothing; and to interpret the law, not to attempt to create rights. Every departure from this duty can only terminate as it has terminated in this case, in the gradual adoption of untenable position demanded by adherence to original , error.
4. As to the facts shown by the record in the ease at bar, the court in its majority opinion says:
“It is patent that the county court did not give appellees any time whatever to ascertain how many of the signers of the supplemental petitions, if any, were legal voters of the precincts where they claimed to reside. We think (he county court should have afforded appellees the opportunity to make the necessary investigation as to the qualifications as legal voters of these signers of the supplemental or amended petitions. The necessary time therefor could have been afforded by allowing the proceeding to lie over to the next regular term of the county court, or for a shorter time, to include which the regular term at which the supplemental or amended petitions were filed, might by a further order have been ex*30tended, and by this means the order calling the election could still have been made at a regular term of the county court next succeeding the filing of the original petition; but as neither of these courses was pursued by the county court, the order calling the election is 'not absolutely void, but voidable.”
This reasoning is in conflict with McAuliffe v. Helm, supra, as in that case, the court refused the petitioners thirty minutes to examine the precincts as they were called, and this court upheld the action of the county judge.
In the case at bar, there were only ten names to the supplemental petition from Aaron’s Run Precinct, and thirteen to that from Precinct C., Third Ward of City of Mt. Sterling, the only precincts about which there is any controversy.
If the court failed to give thirty minutes for the opposition to examine all the names on the petition from the precincts of Warren County (in McAuliffe v. Helm) and such failure did not make that election void, by what process of reasoning does the majority of this court arrive at the conclusion that the election in Montgomery County was voidable because the judge failed to give the opposition thirty days to examine the supplemental petitions containing twenty-three names, all of them, no doubt, known to the county judge.
Again, the majority opinion says that “the opportunity to make the necessary investigation should have been afforded by allowing the proceeding to lie over to the next regular term of the county court, or for a shorter time * # * and by this means the order calling the election could still have been made at a regular term of the county court next succeeding the filing of the original petition.
If it is to be the ruling of this court that a petitioner may withdraw after the petition is filed, and that those opposing the election may demand and have a postponement of the proceedings when a supplemental petition is filed at the term at which the petition is to be heard, then I heartily concur in the majority opinion in suggesting a postponement during the term, or extension of the term.
But, the same rule should be applied in this case as in all other cases, and that is: That when a party is entitled to and desires to have the court pass upon a question, he must ask a ruling of the court thereon, and it no where appears in this record that any motion or re*31quest to postpone was made. In the absence of a motion therefor, it was not the duty of the county court, even under the law as construed in the majority opinion, to grant further time. And, conceding that those opposing the calling of the election were entitled to such postponement, that right was waived by failure to assert it by motion made therefor.
This court has. said so often that it may be considered as crystallized into a maxim, that elections should not be lightly set aside.
Yet this court has nullified an election of more importance to the public than an election of any candidate or set of candidates, and has defeated the expressed will of 1628 voters out of a total of 2354 voting, in a county where the normal vote is less than 2800, upon the ground that the county judge did not, upon his own motion and without request, give to three persons opposing the calling of the election thirty days in which to learn something which they doubtless already knew, or which, if they did not know, could doubtless have learned within thirty minutes, or thirty hours at the longest. And, my interpretation of the statute being so strongly opposed to such action, I am constrained to express my views and to enter my protest thereto.