The opinion
GtveN, Judge,
concurring:
I concur in the action of the Court in denying the issuance of the writ prayed for by petitioners only because of the firm belief that the pertinent constitutional provisions do not prohibit the respondent candidate for the office of sheriff from being “elected” to that office.
The pertinent provisions of Section 3 of Article IX of the State Constitution read: “The same person shall not be elected sheriff for two consecutive full terms; nor shall any person who acted as his deputy be elected successor to such sheriff * * As pointed out in the Ziekefoose and Duke cases, cited in the main opinion in the instant case, all agree that a deputy sheriff is, by virtue of such constitutional provisions, prohibited from serving as successor to a sheriff for whom he has served as deputy. It is my view, however, that the can *618 didate in the instant proceeding does not fall within such prohibition, and that the Court is not warranted in extending the prohibition to a class of persons not expressly included within the constitutional provisions.
It may be noticed that the Framers of the Constitution expressly provided that no person shall be “elected” sheriff for two consecutive “full” terms. Yet in the next clause of the sentence, when making provision as to the election of a deputy as a “successor”, the word “full” is omitted in relation to the term of the predecessor. I can not assume this omission to have been an oversight or an accident. If the provision does not say “full” term as applied to the person succeeded, and it most certainly does not, the Court, in my opinion, has no right to broaden the meaning of the constitutional provision to “full” term.
In the instant case the candidate is serving a term for which he was duly elected and as such candidate seeks election to succeed himself, not a sheriff who served a previous term. It is true, of course, that the term for which the candidate was previously elected, and is now serving, constitutes a part of the four year period for which Thurman Chambers was elected, but that, in my opinion, does not alter or affect the conclusion that the term now being served by the candidate, though a “short” term, is a definite constitutional term. Perhaps I need cite no authorities to the effect that constitutional and statutory provisions should be construed so as not to deprive a citizen of the privilege of holding office, unless required to do so by clearly expressed language. See, however, State ex rel. Thomas v. Wysong, 125 W. Va. 369 , 24 S. E. 2d 463 ; Isaacs v. Board of Ballot Commissioners, 122 W. Va. 703 , 12 S. E. 2d 510 .
I have no difficulty in reaching the conclusion that mandamus is a proper remedy in the circumstances of this case, as held in the Zickefoose and Duke cases. In my view it is not merely a proper remedy, but the only available remedy. It must be noted that the constitutional prohibition, as to the class of persons included, *619 denies to them the right to he “elected”, a wholly different matter from the right to serve in or occupy an office, or a removal from office, yet it is argued that such persons must first he elected and then by some appropriate remedy ousted from office, before the constitutional provision can he given effect. That, in my view, would amount to a plain circumvention of the constitutional provision. Such a theory would not only require their “election”, a thing clearly and expressly prohibited, hut would also permit the holding of the office, at least from the date of qualification until the date of an effective final order of ouster.
In so far as I can determine, the only cogency in the position adhered to by those who argue that mandamus is not available in the circumstances of this case is the lack of a duty on the part of the ballot commissioners to act in such circumstances. I have no difficulty in finding such a duty, for there is an express command from the Constitution that a person falling within the prohibited class shall not be “elected”, and it can hardly be denied that it is the duty of the ballot commissioners to respect and obey such a constitutional demand. See Code, 3-5-4, as amended, and authorities cited in the ZicJcefoose case. ‘ ‘ ‘ Mandamus will not be denied on the ground that there is another remedy unless such remedy is equally beneficial, convenient and effective.’ Pt. 1, Syl., Hardin v. Foglesong, 117 W. Va. 544 .” Point 1, Syllabus, State ex rel. Miller v. The Board of Education of the County of Mason, 126 W. Va. 248 , 27 S. E. 2d 599 .
In Carter v. City of Bluefield, 132 W. Va. 881, 897 , 54 S. E. 2d 747 , this Court stated: “* * * The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it, in order to afford the relief a party is entitled to when there is no other adequate and complete legal remedy. Cross v. West Virginia Central and Pittsburgh Railway Company, 35 W. Va. 174 , 12 S. E. 1071 * * *”. It would seem that if any situation would warrant the enlargement or advancement of the scope of man- *620 damns, it would be in a situation where required to effectuate the true purpose and intent of a constitutional command, especially where such command is for the protection of the whole people, though I am not of the view that the broadening of the scope of mandamus is indicated or necessary in the instant proceeding. See Hardin v. Foglesong, 117 W. Va. 544 , 186 S. E. 308 ; State ex rel. Looney v. Carpenter, 106 W. Va. 170 , 145 S. E. 184 ; State ex rel. Simon v. Heatherly, 96 W. Va. 685 , 123 S. E. 795;State ex rel. Hall v. County Court of Monongalia County, 82 W. Va. 564 , 96 S. E. 966 ; Eureka Pipe Line Company v. Riggs, Sheriff, 75 W. Va. 353 , 83 S. E. 1020 ; Dunlevy v. County Court of Marshall County, 47 W. Va. 513 , 35 S. E. 956 .
Neither am I of the view that in the Duke case ‘ ‘ mandamus was used as an injunction to obtain equitable relief”. In original proceedings in mandamus in this Court the writ is often moulded to conform with the exigencies necessitated by the circumstances of the particular case. In my view there is no substantial reason why a writ of mandamus should not issue, in a proper case, commanding the ballot commissioners to omit a name from the official ballot, as well as a writ commanding the ballot commissioners to place a name on the official ballot.