(dissenting):
I can not concur in the opinion expressed by Judge Brannon in the foregoing opinion, for the following reasons: As I understand the law, the writ, of mandamus does not lie to control the discretion of an inferior tribunal or officer, it will compel such tribunal or officer to act, but never determines how the act shall be done if such inferior officer or tribunal has any discretion, and the act to be performed is merely ministerial. In the ease under consideration the board of ballot commissioners have acted, and have placed T. H. Harvey on the ballot, thus discriminating between his claim to be so placed and the claim of W. W. Marcum, in doing this said board of ballot commissioners have necessarily exercised their discretion, and determined the question between the two candidates. Now, if this Court, by the writ of mandamus, steps in, and hears the testimony and examines the certificates that were before the ballot commissioners, and reviews their action, and determines who shall be placed on the ticket to be voted for, it takes from the ballot commissioners the powers which the law confers upon them, and allows this Court *274to use the writ of mandamus as an appellate proceeding to revise and correct the action of the ballot commissioners, which, as I conceive, is beyond the limit of the powers to be exercised by the writ of mandamus. This question has been determined in such emphatic terms again and again by this Court, that I thought it was at rest. In the case of Board v. Minturn, 4 W. Va. 300, the Court thus states the law: “The writ of mandamus is a proper remedy to compel all inferior tribunals to perform the duties required of them by law; and when there is left to the inferior tribunal no discretion but to perform the duty in a particular way, by doing a certain specified act, then the inferior tribunal acts ministerially, and may be compelled by mandamus, not only to perform its duties, but to perform them by doing a certain specific act. When there is left to the inferior tribunal any discretion to perform its duty in any other way than by doing a certain specific act, then such inferior tribunal can be compelled by mandamus to act and perform the duties required of it by law, but can not be directed what decision shall be made. In such case the court has no jurisdiction by mandamus, and the decision of the inferior tribunal can not be reviewed by mandamus. If any errors have been committed, the proper mode of review is by cer-tiorari.” If it was otherwise this Court need not compel the board of ballot commissioners to act, but would act for them, and there would be nothing left for them to do. In this instance W. W. Marcum and T. H. Harvey have each presented to the board of ballot commissioners certificates of their respective nominations by the same party on the same day, to the same office, and the board of ballot commissioners, after investigation and hearing the testimony adduced by each party, have acted, and placed Thomas II. Harvey upon the ticket to be voted for; and, in doing so, they exercised discretion, and did not perform a mere ministerial act. They might have performed the act in a different way, to wit: by placing the name of W. W. Marcum on the ticket to be voted for, which as we have seen, this Court has laid down as the distinction between a ministerial act and a judicial act. This question was again passed upon, in plain, positive and unmistakable terms, in the case *275of State v. County Court, 33 W. Va. 589 (11 S. E. 72) a case in which the opinion was written by Judge Snyder, in which it was held (second point of syllabus) that “mandamus will not lie to control the exercise of the discretion of any court, board, or officer when the act complained of is either judicial or quasi judicial in its nature. (3) The inferior tribunal may be compelled to act in such case if it unreasonably neglects or refuses to do so; but, if it does act; the propriety of its action, however erroneous and improper, can not be questioned or controlled by mandamus. (4) mandamus can not be permitted to usurp the place of a writ of error or appeal; nor will it lie when there is any other adequate and complete legal remedy.” To the same effect is the holding of this Court in the case of Miller v. County Court, 34 W. Va. 285 (12 S. E. 702) where it is held: (1) “Where an inferior tribunal is authorized tó use its discretion, it can not be controlled by mandamus in judicially determining questions properly presented for its consideration, and within its jurisdiction. (2) If any such inferior tribunal refuse to exercise its discretion and render its judgment, it may be compelled to act by mandamus, but the manner of its action or result of its decision can not be thus controlled. (3) When such inferior tribunal has acted and rendered its decision and judgment, the writ of mandamus will not be allowed to usurp the province of an appeal or writ of error or certiorari, and its action can not thereby be reviewed or reversed.” Other decisions might be cited to the same effect, but these are deemed sufficient, as I think, to show what has heretofore been regarded as the province and true scope of the writ of mandamus in this state. Does section 89 of chapter 25 of the Acts of 1893 enlarge the scope of the writ, or in any manner extend the limits of its jurisdictional power beyond those prescribed by the common-law? I think not. When we turn to the statute, it merely provides that “a mandamus shall lie from the Supreme Court of Appeals, or any one of the judges thereof in vacation, returnable before said Court, to compel any officer herein to do and perform legally any duty herein required of him.”' This clause is found in a section of the election law, and, as I understand, only au*276thorizes a mandamus if an officer therein named refuses to do and perform legally — that is, as required by law — any duty therein required of him. Here this board of ballot commissioners had not refused; it had acted, and, in doing so, had, in its discretion, placed Thomas H. Ilarvey on the ticket to be voted for; and, having exercised its discretion in so doing, this Court can not by the writ of mandamus, control or set aside its action; and, in my opinion, a peremptory writ of mandamus should be refused.