The opinion
Browning, Presideitt,
dissenting:
I respectfully dissent from the decision of this Court to deny the writ of mandamus as prayed for in the petition. It is my opinion that the facts in this case do not distinguish it from the recent proceedings of State of West Virginia, ex rel., Moneth W. Zickefoose, et al v. Garland West, et al., 145 W. Va. 498 , 116 S. E. 2d 398 ; and State ex rel. Duke, et al. v. Perry Emmitt O’Brien, et al., 145 W. Va. 600 , 117 S. E. 2d. 353. If further reference is made in this dissent to these cases they will be referred to as the Zickefoose or Duke case. The 5th Syllabus Point in the Zickefoose case is controlling: “A person who has acted as deputy for a sheriff duly elected to a full term is ineligible, under *621 the provisions of Article IX, Section 3 of the Constitution of West Virginia, to be elected sheriff for the next succeeding full term.”
Only two of the three Judges constituting a majority in this case would deny the writ on the ground that mandamus is not a proper remedy for the relief which petitioner seeks. It is apparent from a careful reading of the majority opinion and the dissenting opinions in the Zickefoose case, as well as the order in the Duke case, that this view is based upon the conviction that, since the Board of Ballot Commissioners has not been given the specific authority by statute to remove the name of a candidate from a ballot, or to refuse to place the name of a candidate upon a ballot, this Court is without 'authority in mandamus to require it to do so. This problem has been with this Court since the early case of Ballot Commissioners v. Minturn, 4 W. Va. 300 . This Court there held that mandamus would not lie to review the action of the Board of Supervisors of Mason County in determining that Minturn was not qualified to become supervisor of the county, though apparently elected to that office, since the Board of Supervisors under a statute then in effect had the power to determine the eligibility of the membership of the Board. No attempt will here be made to review the decisions of this Court between the decision in the Minturn case and that of Marcum v. Ballot Commissioners, 42 W. Va. 263 , 26 S. E. 281 . Suffice to say that the decisions of this Court during that period consistently held that in the absence of statute mandamus would not lie to determine the eligibility of candidates to be placed upon an election ballot. Most of those cases are cited in the Marcum opinion. It should be observed that even in the absence of statute the Virginia Court had held otherwise, as is also noted in the Marcum opinion. Judge Brannon wrote the opinion in the Marcum case, and, after reviewing the previous decisions of this Court and citing other authority, stated: ‘ ‘ * * * I come to the conclusion that without statute aid, mandamus does not lie in this case. * * *” The issue *622 in that case arose out of the holding of two nominating conventions in the Eighth Judicial Circuit in which each certified to the Ballot Commissioners a different nominee for judge. The Ballot Commissioners selected one and the other came to this Court for a writ of mandamus to require the Board of Ballot Commissioners to substitute his name for that of his opponent. The Court held that neither of the conventions was authorized to speak for the Democratic party and that the writ would be refused since mandamus “will not lie unless the relator shows a clear legal right to have the thing done, which he asks for. If the right be doubtful, the writ will be refused. ’ ’ The importance of this decision lies in the fact that the petition was considered upon its merits and not summarily rejected because mandamus was not the proper remedy in such circumstances. The reason for the change of viewpoint, as between Marcum and the previous decisions, upon this subject, by Judge Brannon, and all of the other Judges of this Court who served with him at that time, is clearly stated in the opinion. Just three years before this decision, the Legislature had made a significant change in the applicable law by Chapter 25 of the Acts of 1893. Succinctly is the new rule stated in Syllabus Point 4: ‘ ‘ Section 89, chapter 3, of the Code, as re-enacted in chapter 25, Acts 1893, in cases involving duties of ballot commissioners under said chapter, gives the writ of mandamus more scope than at common-law, rendering it a process to control them as to all actions ministerial or judicial.” In the opinion Judge Brannon said in referring to the new legislation: “* * * it greatly enlarged that section, by providing, not only that officers under it should be compelled to perform their duties by mandamus from the circuit court, but gave a writ from the Supreme Court ‘to compel any officer to do and perform legally any duty herein required of him.’* *
In Pack v. Karnes, et al., 83 W. Va. 12 , 97 S. E. 281 , this Court refused a writ of prohibition to restrain the Board of Ballot Commissioners of Mercer County *623 from placing on the general election ballot the names of two persons alleged to be the nominees of the Democratic party solely upon the ground that prohibition would not lie for that purpose. Judge Poffen-barger in the opinion cited Marcum v. Ballot Commissioners, 42 W. Va. 263 , 26 S. E. 281 , and the inference is clear that relief was denied solely upon the ground that petitioner had selected the wrong remedy. Seven days later in Pack v. Karnes, et al., 83 W. Va. 14 , 97 S. E. 302 , a proceeding in mandamus, the writ was granted directing the Board of Ballot Commissioners “to omit from the official ballot to be voted on at said general election November 5, 1918, the names respectively of said Shanklin and Holroyd. ’ ’
If stare decisis means anything the issue which now perplexes this Court should have been resolved and laid to rest for all time on October 29,1918, the day the second Karnes case was decided, but unfortunately it was not. Two years later this Court decided the case of McKnight v. Ballot Commissioners, 86 W. Va. 496 , 103 S. E. 399 , but strangely enough neither the Amendment to the statute of 1893, the Marcum case, nor either of the Karnes cases was mentioned in the opinion. It is apparent from the facts recited in the McKnight opinion that the petitioner was eligible to be elected and to hold the office which he sought in Magnolia District of Wetzel County. Thus, upon the merits, the writ should have been awarded against the Board of Ballot Commissioners, but, disregarding and not citing the decisions of this Court subsequent to the statutory Amendment of 1893, the only syllabus point would indicate that the writ was awarded solely for the reason that: “* * * the Board of Ballot Commissioners have no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office.” I am completely in accord with that statement and, as far as I know, in none of the three recent proceedings in which this question has arisen no Judge of this Court has contended to the contrary. Perhaps some significance may be attached to the fact that *624 in the McKnight case, and in some subsequent decisions citing it, the Board has set itself up as a judicial tribunal to inquire into the eligibility of the prospective candidate. This Court in such cases disregarded the finding of the Board and granted the writ to the petitioner who was the prospective candidate. Now, in the second Karnes case the relator was a third party who instituted the proceeding in mandamus as a “citizen, tax payer and voter.” The 1st Syllabus Point of that case specifically holds that such a person may maintain mandamus to compel a Board of Ballot Commissioners to discharge its duty lawfully in respect to the preparation of ballots for a general election. Thirty-two years after the McKnight case this Court decided the case of State of West Virginia ex rel. Jane E. Harwood v. Tynes, et al., 137 W. Va. 52 , 70 S. E. 2d. 24. This was an original proceeding in mandamus in this Court by the petitioner seeking a writ to compel the Board of Ballot Commissioners of Cabell County to place her name on the official ballot as a candidate for the office of democratic committeewoman from the 7th Ward of the City of Huntington. Her certificate was in the proper order, her filing fee had been paid, but the Board, questioning her allegiance to the Democratic party, refused to place her name on the ballot, and in its answer the respondents defended their action upon the ground that petitioner was not “openly known” to be a bona fide member of the democratic party, as required by the provisions of Code, 3-4-6, as amended. The evidence in the form of affidavits was in conflict upon this point. It seemed clear that the petitioner had been registered as a Republican from 1943 to 1952, but she had changed her registration and affiliated herself with the Democratic party. Upon the merits of this case this Court very properly granted the writ. Jane Har-wood may have been guilty of joining the church on Saturday night and wanting to sing in the choir the next day, but that was not sufficient reason for refusing her a place on the ballot for the position she sought. However, the 1st Syllabus Point of the Har-wood case is a quotation of the single syllabus point in *625 the McKnight case. The legislative Amendment of 1893, the Karnes cases and the Marcum case were ignored. I reiterate that I have no quarrel with the proposition that a Board of Ballot Commissioners is not empowered to judicially determine the eligibility of a candidate for any office as distinguished from the right of a court to judicially determine that issue and control the action of such a Board in mandamus.
This question next arose in Adams v. Londeree, 139 W. Va. 748 , 83 S. E. 2d. 127, and in that case, for the first time since Pack v. Karnes, 83 W. Va. 14 , 97 S. E. 302 , the petitioners were third parties, citizens and voters who sought by mandamus to compel the Ballot Commissioners of the City of South Charleston “to strike the name” of the Democratic candidate for the office of Mayor of that city from the ballot for the general election which was shortly thereafter to be held. The charter of that city provided that no person was eligibile to the office of Mayor unless “at the time of his election” he was legally entitled to vote in the town election for a member of the common council. It was contended that Londeree was not an eligible voter, inasmuch as he lived within the area of the United States Naval Reservation. It should be observed that Londeree’s name had been placed upon the ballot at the time this proceeding in mandamus was instituted in this Court. The question of whether Londeree was qualified to vote because of his residence in the Naval Reservation, which was within the geographical boundaries of the City of South Charleston, caused this Court great concern. The Court’s opinion consisted of twenty-four pages and Judge Haymond wrote an able dissent of twenty-three pages. The Ballot Commissioners contended that mandamus would not lie and cited State of West Virginia ex rel. Jane E. Harwood v. Tynes, et al., 137 W. Va. 52 , 70 S. E. 2d. 24; and State ex rel. McKnight v. Ballot Commissioners, 86 W. Va. 496 , 103 S. E. 399 . This Court almost summarily dismissed the holdings of those cases stating in the opinion that lack of jurisdiction of the *626 Board of Ballot Commissioners to make an independent investigation to determine the qualifications or eligibility of a candidate for public office could “not be determinative of jurisdiction of a court having original jurisdiction in mandamus. Defendant members of the board of ballot commissioners hold office by virtue of the election laws, and Code, 3-5-41, provides that ‘Any officer or person, upon whom any duty is devolved by in this chapter [on Elections] may be compelled to perform the same by writ of mandamus.’ ” This sentence constitutes one paragraph of that opinion: “We conclude, therefore, that the action of mandamus, in the circumstances of this case, was available to relators, and it was not prematurely instituted.” The dissenting opinion was directed solely to the merits of the case and not the remedy. It appeared that the Court had returned to the principles laid down in Pack v. Karnes, 83 W. Va. 14 , 97 S. E. 302 , if in the intervening cases it had by decision or dicta departed therefrom. However, in State of West Virginia ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434 , 108 S. E. 2d. 788, decided on May 12, 1959, this Court in a three to two decision reversed the judgment of the Circuit Court of Ohio County wherein a writ of mandamus was refused against the City Clerk of the City of Wheeling, who is the official that acts in the capacity of Ballot Commissioner for municipal elections. The petitioner was a candidate for City Council in one of the wards of that city and the clerk had refused to place his name on the ballot on the ground that he was not a resident of the City of Wheeling. In the opinion the Court said: “* * * The matter of his eligibility or qualifications, if it was desired to question same, should have been left for disposition until a later date. This matter has been passed on by this Court in prior decided cases. * * citing iState ex rel. McKnight v. Board of Ballot Commissioners, 86 W. Va. 496 , 103 S. E. 399 ; and State ex rel. Harwood v. Board of Ballot Commissioners, 137 W. Va. 52 , 70 S. E. 2d. 24. The Londeree case was distinguished, but there was no reference to the older cases *627 heretofore cited. Again, if any significance can be attached to it, the petitioner was the prospective candidate and the defendant was the Ballot Commissioner. The petitioner, or petitioners, in the ZicJcafoose and Duke cases, as in this case, are third parties, voters and citizens seeking to remove from the ballot an alleged ineligible candidate for sheriff by proceedings in mandamus. Mandamus is not a writ of right. The granting or refnsal of a writ of mandamus is discretionary with the Court and governed by equitable principles. It issues only to prevent instead of to promote injustice. Drainage Dist. No. 4 v. Murphy, 119 F. 2d. 390; C.J.S., Mandamus, §2, 9. It is not too speculative to presume that the Court, in deciding those cases in which the prospective candidate was the petitioner, and in which the writs were awarded, gave some consideration to the fact that the Boards of Ballot Commissioners had illegally constituted themselves as courts of inquiry to investigate and pass upon the elegibility of the respective candidates, and refused to condone such procedure by denying the writ sought. Furthermore, the evidence as to eligibility was at best conflicting or clearly preponderated in favor of the candidate. The 2nd Syllabus Point of State ex rel. Morrison et al. v. Freeland, 139 W. Va. 327 , 81 S. E. 2d. 685, reads: “Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election.” The. disqualification of the respondent in this proceeding comes from a higher source of authority than a statute. It is contained in the organic law of this State and has been there unchanged since the formation of the State in 1863.
There has been too much “distinguishing” of previous decisions of this Court in the opinions of the recent series of cases in which this issue has arisen. In the words of Samuel Butler, they “could distinguish and divide - a hair ’twixt south and southwest side.” I would overrule or disapprove the lan *628 guage used inconsistent therewith, in every decision of this Court subsequent to Pack v. Karnes, 83 W. Va. 14 , 97 S. E. 302 , that is not in accord with the clear rule laid down in that case upon the question of whether mandamus is a proper remedy by which this Court may direct a Board of Ballot Commissioners to remove, or not place upon a ballot, the name of a candidate for office where his ineligibility to be elected thereto is clearly shown by the statute or organic law of this State, without regard to the propriety of the Board’s conduct in the matter.
Finally, an election contest, a quo warranto proceeding, or a proceeding upon an information in the nature of quo warranto, are not adequate remedies to restrain sheriffs and deputy sheriffs from violating the provisions of Article IX, Section 3, of the Constitution. Only defeated candidates may contest an election, and they can not thereby make themselves eligible for the office they seek. It is not likely that such a defeated candidate would bear the expense incident to a contest without hope of reward. A proceeding in quo warranto to test the eligibility of a person apparently elected sheriff of a county may be prosecuted only by the Attorney General of this State, or the Prosecuting Attorney of the county affected in their discretion. If for a good or unworthy reason such an official chose not to proceed in this manner he could not be forced to do so. A proceeding upon an information in the nature of quo warranto may be prosecuted only by “an interested person.” A casual examination of the Court’s opinion, and the dissenting opinion, in State ex rel Morrision, et al. v. Freeland, 139 W. Va. 327 , 81 S. E. 2d. 685, is sufficient to indicate how remote the chance would be for any person to meet the requirements of an “interested person” in a proceeding to oust an illegally elected sheriff.
I would grant the writ of mandamus as prayed for in the petition. I am authorized to say that Judge Calhoun concurs in the views expressed in this dissent.