Opinion of the Court by
— Overruling motion.
This is an election contest proceeding filed by appellant against appelleе in tbe Johnson circuit court contesting the right to the office of circuit judge of the Twenty-fourth Judicial District in the Commonwealth, *526 composed of the comities of Johnson and Martin, the election being a regular one held in November, 1939, to choose an incumbent for a full term of six years. The election commissioners of the two counties composing the district certified a majority for contestee, James F. Bailey, of practically 3,000 votes over the contestant, but that majority was reduced in the final judgment rendered by the court — presided over by a special judge— tо practically 2,000 majority of votes received by the contestee.
At the beginning of the cоntest in the circuit court contestant entered motion to be permitted to prosecutе his contest in forma pauperis, pursuant to the right conferred by Section 884 of our present statutes. His motion was sustained. A similar motion was made by him, and likewise sustained, permitting him to prosecute an appeal tо this court from the judgment rendered by the circuit court, by which he procured a transcript of the evidence heard at the trial from the official stenographer of the court free of cost. He also asked an order of the trial court — based upon the same grounds — permitting him to рrosecute his appeal to this court without executing the bond prescribed in Section 1596а-12 of our Statutes which was overruled, and this is a renewal of that motion here following the filing of the record in this court by appellant.
In the case of Kash v. Strong,
However, appellant by his counsel seeks to sustain his motion under аnd by virtue of Section 884 supra of our Statutes. It, however, was enacted long prior to the elеction contest statute prescribing for the execution of the jurisdictional bond, from the burden of which appellant now seeks to be excused. The latter statute therefore prevаils and — even if it be conceded that the first one embraces the case (but which is untrue) it is more thаn clear (even to the extent of undisputed demonstration) that no court has the right or authority to dispense with a jurisdictional requisite in order to afford a willing litigant the opportunity to continue in court to the bitter end by relieving him from paying all necessary expenses enroute, and which the jurisdictional requirements which he seeks to dispense with demands that he shall secure. The payment оf costs against which the court may upon a proper showing relieve the litigant under the prоvisions of Section 884 are strictly court costs incident to the litigation and going to officers pеrforming services — the payment or security of which is not made jurisdictional. But, were it otherwise, we thеn repeat, the contest statute, having been enacted at a much later date, and in whiсh the required bond securing costs and damages of the opposing litigant was made a jurisdictionаl requirement, would supersede the former one, even if it was broad enough to cover the рoint in issue. Neither the trial court nor this court has the right to repeal or set aside a duly enacted mandatory statute, notwithstanding disappointed litigants sometimes accuse us of doing so.
Wherеfore, for the reasons stated the motion of appellant to be permitted to prоsecute his appeal from the judgment rendered by the Johnson circuit court without the execution of a bond is overruled;