concurring:
Though I concur in the result reached in the opinion of the Court in this case, I dissent respectfully to that part of the opinion which is summarized in the sixth point of the syllabus. In my view of the case, the decision is predicated upon, and was meant to be predicated upon, the propositions stated in the seventh and eighth points of the syllabus; and the propositions embodied in the sixth point of the syllabus are included somewhat unnecessarily, having the effect of fortifying a comparatively recent abdication or renunciation of this Court’s jurisdiction, authority and duties in mandamus proceedings instituted in pursuant of Code, 3-5-41.
The sixth point of the syllabus reaffirms but enlarges the extent of the second point of the syllabus of the case of State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416. Among prior decisions of this Court which are cited as precedents in the present case and in the Bumgardner case, only one is even remotely in point for the sweeping statements for which they are cited.
In the case of State ex rel. Matheny v. County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959, a case not dealing with an election, the Court in the fifth, sixth and seventh points of the syllabus held:
“A mandamus will not go to compel a party to violate an injunction, even though the applicant for mandamus is not a party to the injunction.
*448“A mandamus will go only to secure or protect a clear legal right, and not to accomplish a wrong, or the violation of the constitution.
“Mandamus will not go, if it would prove fruitless or impossible of performance, or beyond the power or means of the party to whom it is directed to perform its commands.”
The single point of the syllabus of the ease of Hall v. Staunton, 55 W. Va. 684, 47 S. E. 265, is as follows: “The extraordinary writ of mandamus will never be issued in any ease where it is unnecessary, or where, if used, it would prove unavailing, fruitless and nugatory. The court will not compel the doing of a vain thing. A mere abstract right, unattended by any substantial benefit to the party asking mandamus, will not be enforced by the writ.”
In the case of State ex rel. Ryan v. Miller, 82 W. Va. 490, 96 S. E. 791, a case not involving an election, the second point of the syllabus is as follows: “A writ of mandamus will not be issued to compel the performance of an act which would not result in any benefit to the party seeking the writ.”
In the case of State ex rel. Johnson v. Given, 102 W. Va. 703, 136 S. E. 772, the legal proposition here in question is not embodied in the syllabus. Without any citation of authority or precedent, the Court in the body of the opinion at page 709 stated: “This court has no original jurisdiction except to command the inferior tribunal to do what upon the record it should do and has refused to do.” (Italics supplied.) So far as I am able to ascertain, this is the sole basis for the sweeping statement in the second point of the syllabus in the Bumgardner case, which was enlarged and extended in the sixth point of the syllabus in the present case. Neither syllabus point is warranted even by the language inserted so casually in the case of State ex rel. Johnson v. Given, supra. That language speaks merely of what the inferior tribunal “should do and has refused to do.” (Italics supplied.) *449My. study of the previous cases cited fails to disclose anything else even remotely resembling authority for the sweeping legal proposition which has been so recently horn and which is growing and expanding rapidly and, as I believe, dangerously.
In the Bumgardner ease at page 589 of the opinion, without citation of authority therefor, there was inserted something new in the decisions of this Court as follows: “Mandamus will not be awarded to require the person to whom it should be directed to per-from an act, which by law he is not required or empowered to perform.” That is a far cry from saying that mandamus will not lie to compel an unlawful act, one against public policy or one in violation of an injunction.
The seventh point of the syllabus in the present case points out that when a canvassing board completes its duties and adjourns, it is functus officio and without power to reconvene. At this very term the Court required such a board of canvassers to reconvene, though obviously they had no authority to do so in the absence of judicial command. State ex rel. Joyce v. Bivens, 145 W. Va. 545, 114 S. E. 2d 901. That in itself, in my view, is at variance with the sweeping language of the sixth syllabus point in this case.
My views in this connection have been stated in some detail in the dissenting opinion in the case of State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788, and in the majority opinion in the case of State ex rel. Zickefoose v. West et al., decided at this term of court, 145 W. Va. 498, 116, S. E. 2d 398. In the latter case, it is pointed out that mandamus under Code, 3-5-41, has been broadened in scope in order to compel legally and expeditiously the performance of both ministerial and judicial duties imposed in relation to elections under the provisions of Chapter 3 of the'Code.
I do not feel that we should be assiduous in our efforts to avoid the adjudication of the pressing con*450troversies, so often of great public concern, which arise in connection with elections. I believe, on the contrary, that our attitude should be to strive to find within the framework of the law a means of adjudicating such controversies when brought before the Court, in order that election officials may be enabled to perform their duties in a lawful manner. We should, when asked to do so, command such officials to act “legally” in accordance with the language of Code, 3-5-41,* and we should seek to afford to them the guidance which so often might prevent an illegal or unauthorized act, or even a fruitless, abortive election.