The opinion
Browning, Judge,
dissenting:
It is with deference and respectfully that I find myself in disagreement with the majority of this Court in its determination to refuse the petitioners a writ of mandamus directing the respondent Secretary of State to permit them to inspect, at an appropriate time and place, the petitions by which it is alleged that a new party, the American Party or, as recently styled, the American Independent Party, was at least temporarily formed in this state and by which candidates of that party for president and vice president were alleged to be nominated. It is my opinion that the majority *530 reached its erroneous conclusion by reasoning from a false premise, and that they erred in concluding that because the word “nomination” is found in the language of Code, 3-5-23, 24, as amended, 'and because Code, 3-1-4, as amended, provides that voters in all elections shall have the choice of voting either an “open, sealed or secret ballot” that, ipso facto, the signers of nominating petitions have the same right. In other words, it is my opinion that the majority quietly amended the pertinent sections of the statute, as it is alleged courts are sometimes tempted to do, so that the nominating procedures as provided by statute in this state would be uniform. I am inclined to believe the amendment a good one, but I fear that in view of the provisions of Article V, Section 1 of the constitution of this state that only the legislature has the power to so amend the pertinent statutes.
The history of elections, primary elections, and other means of nominating candidates in this country and particularly in this state is important in determining the primary issue in this case. The constitution of the United States provides for no primary election and neither does the constitution of the State of West Virginia. It was not until the year 1915 that the legislature promulgated legislation regulating primary elections. Chapter 3 of the Code of West Virginia, as amended, is entitled “West Virginia Election Code”. Article 1, Section 2 of that chapter provides in part that “ . . . the provisions of this chapter shall apply to every general, primary, and special election in which candidates are nominated or elected or in which voters pass upon any public question submitted to them, ...” By the ancient rule of statutory construction the mention of one necessarily eliminates all others. In other words the language of that chapter except wherein it is specifically provided otherwise does not apply to conventions and nominating procedures by a party whose members did not cast as much as ten per cent -of the total vote for the office of governor in the previous general election. I have carefully read the three sections of Article 5 relating to “certificate nominations” and find no provision whatever that there shall be any secrecy with regard thereto. Neither do I find that *531 a delegate to a convention, in the instances where such a procedure is still available to nominate candidates, has the right to lock the doors of the convention hall and cast his vote secretly with regard to his fellow delegates, the press and others. To repeat, I have no complaint with the finding of the majority that candidates may be “nominated” by the means provided in Sections 23 and 24 and it is obvious that the majority by italicizing the word nominate where used in those sections relied upon such language as being determinative of the issue before this Court. I agree that candidates may be nominated by the petition or certificate procedure, that they may be nominated in a proper case by convention, and that in all other cases they are to be nominated by primary elections, but that does not mean that every section of the code of this state applicable to primary elections is also applicable to conventions and the certificate procedure of nominating candidates. The legislature of this state could very well have made the casting of a vote at a convention secret or they could have provided that the names placed upon nominating petitions would be secret, but the answer is that they did not see fit to do so although carefully affirming such right of secrecy in primary election balloting. It is true that Section 23 provides that no person “signing such certificate shall vote at any primary election to be held to nominate candidates for office to be voted for at the election to be held next after the date of signing such certificate.” The majority emphasizes the importance of that language, but it is to be noted that the section does not say that the signers shall not “vote again”, indicating that by the signing of such certificate they have “voted” once. I 'am not in agreement with counsel for the petitioners in this case that those voters who signed petitions creating, temporarily, at least, the American Independent Party and nominating its candidates for president and vice president, are merely registration records. I agree with the majority that they are more than that, but I do not believe that a determination of that question equates the status of a signer of a petition to that of a “voter” in a primary election. It is in my opinion almost ridiculous to talk about the signing of such a petition as being equivalent to a secret *532 ballot. In casting such, a vote in a primary election not even the election officials know how the voter votes. Any person soliciting signatures for the purpose of nominating a candidate by that method of necessity knows exactly whose names are contained thereon. Every signer on every petition after the first one has an opportunity to look at other names on the petition, the secretary of state and all of his staff of necessity may examine the signatures, as well as every clerk of every county court of this state and all of his staff have the right to examine the signatures that are alleged to be those of residents of the particular county. Just how the legislature, if it ever decided to adopt the amendment proposed by the majority opinion, would make provision so that these names would be “secret” is beyond my comprehension.
It is my opinion further that when these certificates are filed in the office of the Secretary of State as Oode, 3-5-24, as amended, mandatorily requires, they become public records. “. . . [A] public record is one required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done. In all instances where by law or regulation a document is filed in a public office and required to be kept there, it is of a public nature, . . 45 Am. Jur., Records and Recording Laws, § 2. While not directly in point, I believe the reasoning of this Court in the recent case of State ex rel. Charleston Mail Association v. Kelly, 149 W. Va. 766 , 143 S. E. 2d 136 , is very persuasive in this regard. See also, Warth v. Co. Ct., 71 W. Va. 184 , 76 S. E. 420 .
For the reason stated herein I would have granted the writ of mandamus as prayed for. I am authorized to state that Judge Calhoun concurs in the veiws expressed in this dissenting opinion.