dissenting, said:
Upon the petition of the petitioner Clay, a citizen of Warwick county, Virginia, the court is asked to award the peremptory writ of mandamus to compel the respondent, one of the registrars of said county, to furnish to him a copy or to allow him, the said petitioner, to make a copy of the registration books in his charge as a public officer of the State of Viiv ginia.
The respondent answers, and says that he is a public officer of this State, that he is the registrar for the district in question, and has duly qualified as such, and taken an oath to perform the duties of his said office according to law. That chapter 8 of the Code of Virginia, sets forth in §§ 71, 78, 74, 75, 76, 78, 79, 80, 81, 82, 83, 84, 85, 86, plainly what his duties are, and how he shall perform them. That the law provides for a copy of the registration books in section 71, supra, and only there; and then it is provided that when the said books become so mutilated and defaced in the judgment of the electoral board of the county, under which he holds his office, as to render it proper.
That as an honest, faithful, and discreet citizen and officer, he has ever looked to the public good, and sought to do his duty as directed by the law of Virginia.
“That within the last two or three months H. DeB. Clay has made two applications to him for the purpose of inspecting, making memoranda, and copying the registration books, which were under his authority and control; that he has never refused to allow the said books to be inspected, but has ever and will ever keep and preserve the same, and have them open to the inspection of the public. But he has ever and will ever, un*796less compelled by authority of law, refuse to allow said registration books to be copied.” He responds further that if he gave a copy to one citizen he could refuse none; that he is the lawful custodian of these books, and is required by law to them safely keep, and as the law does not allow them to go out of his custody, his presence would be necessary whenever and wherever a copy should be made.
That he has often been required to furnish copies by political partizans of both political parties, but that he has refused to allow copies of the registration books to be made because it is no part of his duty to do so.
That his office is- a statutory office, and the duties of the same are prescribed by law, and that when he has strictly complied with the law’s prescription he has failed in no legal duty.
That the petitioner Clay, like any other citizen of the Commonwealth, has the right to inspect the registration books, so far as they may concern him, but he cannot as a citizen set up any supervisory powers over, the said- books. That the law prescribes in section 86 of chapter 8 of the Code of Virginia, how these books may be purged if they are supposed to require that.
That it is by law provided, that it shall be lawful for any five qualified voters of any election district to give notice; and the notice to be signed by them all, when by proper proceedings, upon notice, and upon legal evidence, the questions raised can be duly considered and correctly and justly determined.
That' the law does not bestow upon one citizen this or any other right concerning these books, except the right to inspect as one of the public (that is to inspect so far as they concern him), and not so granting, but expressly providing for the matter otherwise, the effect is to exclude the claim.
But that the petitioner cannot claim the right by implication, upon the insistence that the law does not forbid; to have the right to mandamus he must not only show that the law does *797not forbid his claim, but he must establish a clear legal righty and be without any other adequate legal remedy.
It is not the province of this writ to determine whether he, or some other person has, or he has or not such a right, his right must be clear.
“To justify the issuance of the writ to enforce the performance of an act by a public officer, two things must concur: the act must be one the performance of which the law specially enjoins as a duty resulting from an office, and an actual omission on the part of the respondent to perform it. It is incumbent on the relator to show not only that the respondent has failed to perform the required duty, but that the performance thereof is actually due from him, at the time of the application.” Amer. & Eng. En. of Law, 14, 105, and numerous authorities there cited. This is a concise and correct statement of the law upon this branch of this inquiry. Again in the same work, at p. 130, upon the same subject, it is said:
“The office of the writ of mandamus, when addressed to a public officer, is to compel him to exercise such functions as the law confers upon him.
“ When the law enjoins upon such officer the performance of a specific act, or duty, obedience to the law may, in the absence of other adequate remedy, be enforced by this writ.
“But the writ neither creates nor confers power upon the officer to whom it is directed. It can do no more than to command the exercise of powers already existing.
<fAnd in order to compel a public officer by mandamus to do an act at the instance of the relator, he must show that he has an interest in the act sought to be coerced.
“The writ of mandamus lies to compel a public officer to perform a duty concerning which he is vested with no discretionary power, and which is either imposed upon him by some express enactment or necessarily results from the office which he holds.” See authorities cited, note (1), and note (2), p. 140, 14th Vol. Amer. & E. En. of Law.
*798By the law of this State (section 84, Code of Virginia), the registrar is required to keep and preserve the registration books, and that the said books shall at all times be open to public inspection; there is no contention that there is any duty imposed upon him by law to copy these books, unless the duty is imposed by the words, “and the said registration books shall be at all times open to public inspection.”
But the majority of the court finds in these words, the right in any citizen to have a copy made of these books. Does the right to inspect carry with it the right to have a copy ? What does an inspection mean? In its most comprehensive sense, to look into, from the Latin inspciere, but in practice, an examination, and in this sense all public records are open for an inspection by any person having an interest in them, and the respondent does not refuse to permit an inspection of these books. But the right to a copy is not bestowed by the law, none is p.rovided for, and no compensation allowed for making it.
In the case of public judicial writings, these are open to the inspection of every one upon paying the fees of the officer charged with their custody; and if this inspection is denied, the right is enforced by rule of court when an action is pending, and by writ of mandamus when no action is pending. Min. Inst., Vol. 4, p. 714; Greenlf. Ev., § § 472, 477. 478.
This is conceded, no person has denied that it is the duty of a public officer to allow an inspection of such public records, and by reason of one statute which so provides, copies may be had of these, and the law prescribes the officer to make the copy and the fees payable therefor, and the duty being plain, and prescribed by law, any citizen may have a copy upon application, and upon paying the fees prescribed by law, and a failure to perform this duty will entitle the citizen, or any person, to the writ of mandamus against the officer.
But there are public writings not judicial, such as these official registers of the qualified voters of the district, and the right to an inspection of these is not so universal as with re*799gard to public writings, judicial in their character, and is regulated by law in this State.
The writing in question is open by law to the inspection of the public, and this far there is a public duty upon the registrar, but for obvious reasons the law does not provide for copies; these books are subject to daily changes throughout the year by sec. 78 of the Code, a name or names may be added or removed as occasion requires. There is no recordation of this writing, it has no permanent official character, or form. A copy would be no exemplification of the original, for a single day; necessarily, and by law actually protean in character, it changes in the midst of a shifting population continually.
It is a public writing under the sanction of the law, and its uses by the law prescribed; it is not for the courts to prescribe how it shall be kept, or when copied. With the wisdom of the law we have little to do; it is not the policy of the law to require copies to be made of these books, except when the originals have been destroyed. It appears to me to be wisely not provided that these books shall be copied at the instance of everybody.
A copy might be obtained every week in the year, and yet no two copies be alike; one political leader ox follower having fortified himself with what he regarded as an unanswerable authority for all of his associates to demand the right to vote, might find his antagonist also armed with a supposed evidence percontra, and many disputes be set up at the polls, and many tribunals installed to determine questions left to the determination of a board of sworn officers, the law has wisely left such a provision out. But however that may be, and with that I claim not to deal, my opinion is that a right to a copy must first be established by law,'then if the right so clearly exists, it must be appointed by law with the respondent to make and deliver it, before it can become his duty to do so.
That if there is no right established and ordained by the law, and no duty imposed upon the respondent by law to make *800the copy, the court cannot create the duty and then issue the writ to compel its performance. The question is one of a legal right, and the petitioner must show the existence of such right, or the mandamus cannot issue.
I am of opinion to deny the writ, and to dismiss the petition.
Mandamus allowed.