I agree with Judge Thomas in the first ground of his dissenting opinion set out above. His reasoning and legal conclusions appear to be sound. Ample and sufficient legal authority seem to support his opinion that the trial court committed prejudicial error in permitting appellee to file an amendment to his pleading 49 days after the limitation terminus fixed by statute, the effect of such ruling of the trial court being to permit the appellants, the election contestants, to set up grounds of contest that they completely refrained from revealing in their original pleading. This litigation of contestants began with a pleading pregnant with decadent and meaningless conclusions rather than with the vibrant facts necessary to sustain its legal life. And undoubtedly the contestants lingered too long in bringing forth the amendment that gave their cause the vitaminic nutrition necessary to sustain its vitality in a court of law. *Page 396

The second ground of the dissenting opinion is out of harmony with my own views.

It appears that appellants wished to back off from the position originally assumed by them. Appellants originally said voters X, Y and Z were nonresidents, for example, and were therefore illegal; that they voted for the "wet" side; that the particular votes cast by them should accordingly be stricken from the total tabulation on that side of the question. Later, the evidence having supported appellants in all matters pertaining to voters X, Y and Z, except in the matter of their manner of voting, the appellants sought to take them entirely out of the contest and beyond judicial consideration in this case through appellants' offered amendment. I believe this could not be done legally. This court is a branch of our state government. It is neither "wet" nor "dry," but it is merely a governmental branch set up as a part of a system constituting our body politic as a whole. As an individual citizen, I am "dry" in principle, practice and belief, but as a judge and a member of this court I am neither "wet" nor "dry" but rather an impartial judicator holding the unbiased judicatory scale. In this position, I am interested only in sensing the majority's will as expressed at the polls on the face of the best evidence before me produced on this trial. This best evidence, not refuted by probative testimony, indicates that voters X, Y and Z voted "dry" and illegally. Who am I, endowed with a merely finite mind, to reach out into the realms of unreasonable speculation and conclude that voters X, Y and Z perjured themselves on this trial? Their votes were a part of thesense of the people involved and they must be considered and kept within the voting tabulation of this case, even though my personal sentiment directs the contrary. My judgment demands their retention. The trial court was not in error, as I see it, in overruling appellants' motion to file their amendment seeking to eliminate the votes of X, Y and Z from the court's consideration in reaching a decision in this case. It was within the trial court's discretion to overrule the appellants' offered amendment in the furtherance of justice. What was the justice of this case? Certainly not what I personally may have desired. Justice in this case was the carrying out of the sense of the majority of the electorate as established by all the legal evidence *Page 397 produced on the trial. The trial court correctly exercised its discretion in overruling appellants' motion to file an amendment eliminating the votes of X, Y and Z from evaluation in this case, according to my own judicial view.