(dissenting in part): I dissent from that part of the court’s opinion represented by syllabus 3 (a). Otherwise I concur in the opinion.
The court construes the contestor’s Statement of Intention to allege that he would have been elected if the forty-five rejected votes had been counted. I cannot so read the allegation. The allegation was: “That the number of said votes so cast for the office of county commissioner, second district, which were rejected was sufficient mathematically to have changed the result of said election” I find no ambiguity in that allegation.
Note first that the contestor did not allege that the number of votes cast for him was sufficient to change the result of the election. He merely alleged that the number of rejected ballots cast for the office was mathematically sufficient to change the result of the election. Obviously it was. If the forty-five votes cast for the office had been counted and out of that number he had received as many as twelve more than the contestee he would have been elected, since the contestee’s lead was only eleven without counting the forty-five votes. But in no way did he allege that out of the forty-five he would have received enough to overcome the contestee’s lead of eleven. Neither directly nor by implication did he allege any knowledge as to how any of the forty-five voted. Indeed, in his statement before the contest board counsel for the contestor distinctly disavowed any such knowledge. What contestor said, and nothing more, was that forty-five votes cast for the office were rejected which should have been counted, that he was entitled to have them counted — as indeed he was — and that the forty-five votes were sufficient in number to change the election result. This is no technical construction. In my opinion the court’s construction *100reads into the plain words of the allegation a meaning which is not there.
Let me make it clear that I am not now discussing what sort of an allegation is sufficient under the contest statute — specifically G. S. 1935, 25-1411, Fifth. It might be argued that it is sufficient under the contest statute merely to allege that enough votes were unlawfully rejected — regardless of the candidate for whom they may have been marked — to change the result of the election. Under the court’s construction of the statement it was not necessary to determine that question. If such an allegation would be sufficient then of course the statement as I construe it was good as against the motion. But appellee does not argue for such a construction of the contest statute and such a construction would, in my opinion, be wholly inconsistent with the decision in Free v. Wood, 137 Kan. 939, 22 P. 2d 978. That case involved the question of whether the contestor had made a sufficient preliminary showing before the contest board to entitle him to a recount. It was held that he had not done so, that it was necessary for the contestor to make such a showing as to render probable that a recount would change the result of the election. Many authorities were cited to support the proposition that in the absence of such a showing a "counting of the ballots would be a fishing expedition” not to be approved.
It is true that our issue here arises upon the sufficiency of the pleading and not upon the sufficiency of preliminary evidence. But certainly if upon the preliminary evidence the contestor must make a prima facie showing that a recount would change the election result it cannot logically be said that he is not required to make a corresponding allegation in the pleading under which such evidence is to be taken. Personally I would be willing to reexamine the question involved in Free v. Wood, supra. I only say now that the allegation of the instant Statement is insufficient under the reasoning upon which the decision in that case was based.
Wedbll, J., concurs in the foregoing dissenting opinion.