dissenting:
I can not agree to the decision in this proceeding which awarded a writ of mandamus to compel the defendants to place the names of the petitioners on the official ballot used at the regular municipal election held in the City of Welch on June 6, 1950, and to appoint certain designated persons as election officials to represent the Democratic party at that election. As I am thoroughly convinced that the writ should have been refused, I record my emphatic dissent.
I accept as substantially correct the legal pronouncements in these quoted statements in the majority opinion: “The right to vote and the conduct of elections are created by the Constitution and statutes of this State”; and “ ‘At the outset of any election case, the primary consideration is that no voter should knowingly be disfranchised.’ ” *479The principles embodied in these expressions, however, should be supplemented by the equally important legal principles that the right to vote secured to the citizen by the Constitution must be exercised in the manner and subject to the regulations prescribed by the Legislature and that the conduct of elections is regulated by the Constitution and valid legislative enactments. The principles last stated have been ignored in the decision reached by the majority. Had they been recognized and properly applied to the facts of this case the necessary and correct conclusion would have been the denial of the writ.
The majority bases its decision upon the unsound premise that Chapter 40, Article 4, Acts of the Legislature, Regular Session, 1941, (incorporated in Michie’s 1949 Annotated Code as 3-4-29), Code, 1931, 3-4-30, and Section 28, Chapter 3, Acts of the Legislature, 1929, Municipal Charters, apply to and authorize the nomination of candidates for municipal office by certificate instead of by convention, as expressly provided by Section 25 of Chapter 3, Acts of 1929, Municipal Charters, and which last mentioned statute is the charter of the City of Welch. To bolster the conclusion reached, this bald and legally unsupported statement is set forth in the majority opinion: “To give Section 25 of the charter of the City of Welch the application contended for by defendants would work a manifest injustice and would tend to prevent a substantial portion of the citizens of Welch from actually exercising their right of suffrage, and untrammeled selection of their city officials.” In view of the express provisions of Section 25, which specify and prescribe a simple and familiar method whereby the members of the Democratic and the Republican parties may select their candidates for municipal offices, the statement just quoted is not only completely at variance with the real factual situation but is surprisingly inapt and utterly foreign to any material issue involved in this proceeding. The reasoning to support the quoted passage in the majority opinion would, in principle, ignore a valid statute imposing a tax and excuse a delinquent taxpayer for his failure to pay it.
*480The provisions of Chapter 40, Article 4, Acts of the Legislature, 1941, Regular Session (Michie’s 1949 Annotated Code, 3-4-29), do not apply to the facts of this case as disclosed by the pleadings. That statute, which deals with nominations of candidates for public office by certificate, as distinguished from a primary or a convention, contains no general reference whatsover to a municipality. This is admitted by the statement in the majority opinion that “No mention is made of a nomination for a municipal office by certificate.” The only specific political units which the statute designates are the county and the magisterial district. Though it makes mention of a political subdivision of a county, it is evident, from the provisions of the section as a whole, including the specified form of certificate, that the words “political subdivision”, as used in the statute, mean a magisterial district and do not relate to a municipality. Expressio unius exclusio alterius. Even if the section is read in pcuri materia with Section 28 of the charter of the City of Welch, it is extremely doubtful if it is applicable to a nomination for a municipal office.
If the Legislature had intended Chapter 40, Article 4, Acts of 1941, Regular Session, to apply to municipalities it could, and doubtless would, have made the application of the statute to such nominations clear by apt language. Only by a strained and utterly unwarranted construction, and not by any justified liberal construction, of the statute relating to nominations for public office can it be made applicable to nominations for municipal office. The tortuous construction now placed upon Chapter 40, Article 4, Acts of the Legislature, 1941, Regular Session, when read in connection with Section 28 of the charter of the City of Welch, however, can not extend the scope of the general statute to the purported nominations of the petitioners. The statute applies only to “groups of citizens having no party organization”. The record discloses, without the shadow of a doubt, that the Democratic party organization, to which the petitioners and the signers of their certificates of nomination unquestionably belong, though *481inactive in municipal elections in Welch since 1942, has not ceased to exist. It can not be said with any degree of reason that the Democratic party in the City of Welch has “no party organization”. The record shows that, though the chairman of the Democratic city executive committee has ceased to reside in Welch and a vacancy occurs in that position, five members of the committee reside in the city and continue to hold their positions in the party organization. The existence of a vacancy in one or more positions in the city organization of the Democratic party in Welch does not abolish or destroy the party organization. The existence of the Democratic party organization is indicated by the allegation in the petition in this proceeding thalt the appointment of election officials to serve and represent the Democratic party at the municipal election in June was recommended by the representative of that party and is recognized by the statement in the majority opinion that “even though the Democratic party was not represented as one of the leading parties in the preceding general election held in the City of Welch it is clear that such party was entitled to representation in the appointment of election officials.” (Emphasis supplied) . How, may I ask, can the Democratic party be represented in the appointment and by the service of election officials in its behalf if it has ceased to exist as a party organization in the City of Welch? The undisputed facts show that the petitioners are members of the Democratic party in the City of Welch and that they and the signers of the certificates of nomination are not a group of “citizens having no party organization” within the meaning of the statute upon which the majority bases its decision. No sufficient reason or excuse is presented to justify the failure of the existing Democratic party organization to fill the vacancy in the position of chairman of the municipal executive committee or to call a convention, as provided by Section 25 of the charter of the City of Welch, to nominate its candidates for the municipal offices voted for and filled at the city election on June 6, 1950.
In view of the foregoing recital of the real factual situation involved in this proceeding, it is evident that the *482failure or the unwillingness of the Democratic party organization, and the indifference of its members to the inaction of those comprising that party organization, to take advantage of the simple and well known means expressly provided by Section 25 of the charter of the City of Welch to nominate its candidates for municipal offices by a party convention in which every member is entitled to participate, voice his views, and vote his sentiments in the selection of its candidates, not the provisions of Section 25, have produced the “manifest injustice” and the prevention of “a substantial portion of the citizens of Welch from actually exercising their right of suffrage and untrammeled selection of their city officials”, if the result visualized and deplored in the majority opinion has or may come to pass. In a situation of the character just described this Court should not be called upon to act in the place of representatives of, a political party who, for reasons of their own, have failed or refused to act, and, if so called upon, should summarily refuse to perform or require the performance of the functions of any party organization and should decline to create, by labored effort and unsound reasoning, an alternative which excuses and rewards the inaction of any such organization.
The statute which applies to and should control the decision in this case is Section 25 of the charter of the City of Welch, Chapter 3, Acts of the Legislature, 1929, Municipal Charters, which relates to the nominations of candidates of political parties for the municipal offices of mayor and councilman and expressly provides that between the first and the fifteenth day of May preceding a municipal election each political party shall hold a convention for the purpose of nominating a mayor and councilmen. The statute authorizes each political party to make nominations for these offices and specifies the method by which such nominations shall be made. As the statute creates the right to nominate the designated officers and provides the method to be pursued in exercising that right, it is a mandatory statute. Mandatory statutes are imperative and must be strictly pursued; and when *483a statute specifies the manner in which an act is to be done the command of the statute must be strictly followed and complied with. Hallanan v. Hager, 102 W. Va. 689, 136 S. E. 263; Morris v. Board of Canvassers of City of Charleston, 49 W. Va. 251, 38 S. E. 500; Mears v. Dexter, 86 Va. 828, 11 S. E. 538. In the Morris case the opinion of this Court, prepared by Judge Brannon, contains several pertinent quotations. One of them, written by Justice Thompson of the Supreme Court of the United States in . the circuit court case of The United States v. One Case of Hair Pencils, 1 Paine 400, 406, is in these words: “Affirmatives in statutes that introduce new laws, imply a negative of all that is not in the purview. So that a law directing a thing to be done in a certain manner, implies that it shall not be in any other manner.” Another, by Chancellor Kent, is in this form: “And where a statute limits a thing to be done in a particular form, it includes in itself a negative, viz.: that it shall not be done otherwise.” 1 Kent, Comm. 14th ed. 467, note. A third, contained in the opinion of the Supreme Court of Pennsylvania in the case of Little Beaver Township School Directors Election, 165 Pa. 233, 237, 30 A. 955, 27 L. R. A. 234, is couched in this language: “The ordinary rule, as has been stated by recognized authority, is that where power has been given to do a thing in a particular way, then affirmative words, marking out the way, by necessary implication prohibit all other ways.” Failure to comply with a provision of a mandatory statute nullifies the privilege which the statute confers. 50 Am. Jur., Statutes, Section 20. “As in the case of statutory provisions generally, so in the case of statutory remedies and methods of procedure, the courts frequently refer to the necessity of compliance with, or conformity to, the provisions of the statute, in every essential particular thereof. Indeed, in the latter situation, the rule of strict compliance is ordinarily regarded as particularly applicable. This is especially true with regard to a statute setting up a novel, .extraordinary, or summary proceeding which is in in-.vitum, or which is radically different from that of the common law, or is in derogation of a common right. * * *. *484In the absence of such compliance, the proceedings are regarded as void and subject to collateral attack.” 50 Am. Jur., Statutes, Section 22. “It is an established principle, that if a statute creating a new right or cause of action where none existed before, also provides an adequate remedy for the enforcement of the right created, and the statutory remedy is not by its terms cumulative, the ¡remedy thus prescribed is exclusive. In such case, such remedy must be pursued in the enforcement of the right to the exclusion of any other remedy.” 50 Am. Jur., Statutes, Section 596.
Under the authorities cited or quoted from in the preceding paragraph of this dissent, it is perfectly obvious to me that the only way in which candidates of the Democratic parity for the offices of mayor and councilman in the City of Welch can be legally nominated is by a convention of that political party as expressly provided by Section 25 of the charter of that city, and that, for that reason, the attempted nominations of the petitioners by certificates are null and void and of no valid force or effect.
The writ should have been refused in this case for an additional reason. By the conflicting allegations of their petition to the effect that the Democratic party organization in the City of Welch does not exist and that the proper representative of that party has recommended the appointment of election officers to represent it at the June election, the petitioners have assumed inconsistent positions in this proceeding. Manifestly the Democratic party organization can not be non-existent for one purpose and, at the same time, exist and function for another related purpose in connection with participation in the conduct of a municipal election. Litigants may not assume successive inconsistent, positions in the course of a suit or series of suits with reference to the same facts or state of facts. Hinerman v. Marshall County Bank, 134 W. Va. 533, 60 S. E. 2d 217; Calhoun County Bank v. Ellison, 133 W. Va. 9, 54 S. E. 2d 182; Greenbrier Laundry Company v. Fidelity and Casualty Company of New York, 116 W. Va. 88, 176 S. E. 631; Central Trust Company v. Cook, 111 W. *485Va. 637, 163 S. E. 60; Ealy v. Shelter Ice Cream, Company, 110 W. Va. 502, 158 S. E. 781; Clay County Bank v. Wilson, 109 W. Va. 684, 158 S. E. 517; MacDonald v. Long, 100 W. Va. 551, 131 S. E. 252.
For the reasons stated, and under the authorities cited and discussed in this dissent, I would deny the writ of mandamus prayed for 'by the petitioners.
I am authorized to state that Judge Fox concurs in the views expressed in this dissent.