dissenting:
Though I concur in the views expressed in the dissenting opinion filed by Judge Berry, in which I have joined, I register this separate dissent because of the far-reaching and, in my judgment, the intolerable and unsettling effect of the decision of the majority upon the heretofore well settled and firmly established procedure by many decisions of this Court in connection with the nomination and the election of public officers under the constitutional and statutory provisions which constitute the election law of this State, and because the decision of the majority is contrary to a number of prior decisions of this Court concerning the proper function of a mandamus proceeding and necessarily causes uncertainty and confusion in the use of that writ and in the law governing elections in this jurisdiction.
At the outset, it should be emphasized that this is an original proceeding in mandamus in this Court as distinguished from other well recognized proceedings in which remedies are available in election controversies, that when this mandamus proceeding was instituted the defendants, constituting the board of ballot commissioners of Upshur County, had taken no action and given no indication that it would or would not place the name of the Republican nominee for the office of *515sheriff upon the official ballot to be used in the general election in November 1960, or that it would or would not strike his name from such ballot. It should also now be pointed out that, under the statute providing the remedy of mandamus to compel any person or officer to perform any duty imposed by the statute, the authority conferred by the statute upon this Court in an original proceeding in mandamus is to compel any such officer “to do and perform legally any duty herein required of him.” Section 41, Article 5, Chapter 3, Code, 1931. (Emphasis supplied). It should also be observed that the Republican nominee for sheriff of Upshur County might cease to be a candidate for that office by death, withdrawal or removal from the county before the election in November, or might be defeated in that election, and that, if any of those situations should occur, it would not be necessary or proper to prosecute any proceeding to prevent or interfere with his candidacy for election to that office.
A basic principle in the law of mandamus, repeatedly recognized and applied by this Court, is that the writ of mandamus will not be awarded to require the person to whom it should be directed to perform an act which by law he is not required or empowered to perform. State ex rel. Wilson v. The County Court of Barbour County, 145 W. Va. 435, 114 S. E. 2d 904; State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788; State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416; State ex rel. The City of Huntington v. Heffley, 127 W. Va. 254, 32 S. E. 2d 456; Butler v. State Compensation Commissioner, 107 W. Va. 619, 149 S. E. 828; Pardue v. County Court of Lincoln County, 105 W. Va. 235, 141 S. E. 874; State ex rel. Kelly v. State Road Commission, 102 W. Va. 88, 134 S. E. 465; State ex rel. Matheny v. County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959; Dempsey v. Board of Education of Hardee District, 40 W. Va. 99, 20 S. E. 811. See also Eison v. Shirley, 165 Ga. 374, 141 S. E. 295; Graham v. Merritt, *516165 Ga. 489, 141 S. E. 298; 55 C.J.S., Mandamus, Section 10c; 34 Am. Jur., Mandamus, Sections 62 and 76.
Article 5, Chapter 3, Code, 1931, as amended, which provides for the creation of a board of ballot commissioners for each county in this State defines in Section 3 the duties of the board. That section, to the extent here pertinent, provides: “It shall be the duty of the board of ballot commissioners for each county to provide printed ballots for every election for public officers in which the voters or any of the voters within the county participate, and cause to be printed, on the appropriate ballot, the name of every candidate whose name has been certified to or filed with the clerk of the circuit court of the county in any manner provided for in this chapter.” Section 4 provides for the form and the arrangement of the ballots. Though by other sections of the election statutes the board is directed or required to do certain specified acts, neither Section 3 nor any other statute imposes, or attempts to impose, any duty or confers, or attempts to confer, any authority upon the board to determine the qualification or the eligibility of any candidate to be elected to or to hold any public office. By the quoted provision of Section 3 the power and the authority of the board are limited to the process of preparing and providing the ballots according to the form and arrangement specified in Section 4 and of causing to be printed, on the appropriate ballot, the name of every candidate whose name has been properly certified to or filed with the clerk of the circuit court or other competent authority. Neither Section 3 nor any other statutory provision authorizes or directs the board to omit the name of any such candidate from the printed ballot. There is no assertion in the majority opinion that any such duty is imposed upon the board or that it possesses any such authority or the power to exercise it. The conclusion reached by the majority to award the writ, however, necessarily implies that the board, in some mysterious manner and from some unknown source, is subject to such duty and has such *517authority and the power to exercise it. Manifestly, unless there is such duty, a writ of mandamus can not be awarded to compel the performance of a duty which does not exist; yet the action of the majority in awarding the writ accomplishes that amazing and incredible result in requiring performance by the board of an act which it is under no duty, and is without authority, to perform.
In at least three rather recent decisions constituting, until now, its later decided pronouncements, this Court has held that the board of ballot commissioners has no authority to institute an inquiry to determine the legal qualifications of a candidate to hold the office to which he seeks election. State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788; State ex rel. Harwood v. Tynes, 137 W. Va. 52, 70 S. E. 2d 24; State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 103 S. E. 399. Notwithstanding these decisions the majority in a labored but an inept and unsuccessful effort to distinguish them from the case at bar, instead of expressly overruling them, undertakes by judicial pronouncement to confer that authority, which only the Legislature might or might not attempt to do, upon the board and then directs the board how to exercise such authority. By such surprising and heretofore unheard of action and without citation of supporting authority, this Court decides, in the first instance, for the board, a question which the board is without authority to consider or determine. It is clear that the Legislature, in conferring limited authority on the board of ballot commissioners, did not intend that it should be empowered to determine the qualifications of a candidate to be elected to or to hold public office, for the granting of such authority would be clearly violative of Article Y of the Constitution of West Yirginia as a matter of constitutional law and for that reason invalid, and, if valid, would, from a practical standpoint, give rise to controversies of unlimited number and of long duration which would cause delay in the final preparation *518of the ballots and would most likely continue beyond tbe date fixed for an election and prevent tbe preparation of tbe election ballots in time for use at tbe time fixed by law for tbe bolding of sucb election.
In tbe McKnight case tbis Court made these sound and positive statements: ‘ There is no authority conferred by law upon a board of ballot commissioners to try tbe question of tbe eligibility of candidates. To bold that sucb a board possesses tbis power would be to bring into existence many controversies and contests for which there would never be a reason if tbis question is left for determination by competent authority after tbe election. We are of opinion that when a candidate files a certificate showing therein that be is eligible to tbe office, tbe board of ballot commissioners has no option but to place bis name upon tbe ballot. It would, of course, be different if tbe certificate itself showed bis ineligibility, but in tbis case tbe certificate shows that tbe relator is eligible to tbe office for which be desires to be a candidate, and tbe inquiry of tbe board of ballot commissioners must stop there. If be should be elected to tbis office a proper inquiry can then be instituted before a competent tribunal to determine tbe question of bis eligibility.”
It is obvious that tbe reference in tbe above quoted passage from tbe McKnight case to tbe proper inquiry to be instituted before a competent tribunal to determine tbe eligibility of a candidate who has been elected to an office to be filled by tbe voters of a county, sucb as tbe office of sheriff, is an election contest before tbe county court authorized by Article VIII, Section 24, of tbe Constitution, and Section 1, Article 9, Chapter 3, Code, 1931, and a quo warranto proceeding or a proceeding upon an information in tbe nature of a writ of quo warranto in any court of competent jurisdiction to determine tbe right of a person to bold a public office to which be claims to be entitled.
Section 2, Article 9, Chapter 3, Code, 1931, expressly provides that tbe contestant in an election contest may object to tbe qualification of a person *519returned as elected. This Court has held in numerous cases that a contestant may maintain an election contest on the ground that the person returned as elected is ineligible or disqualified to be elected to or to hold an office to which he has been returned as elected. Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757, 70 S. E. 2d 477; Irons v. Fry, 129 W. Va. 284, 40 S. E. 2d 340; Orndorf v. Potter, 125 W. Va. 785, 25 S. E. 2d 911; State ex rel. Savage v. Robertson, 124 W. Va. 667, 23 S. E. 2d 281; Dryden v. Swinburne, 20 W. Va. 89; Gorrell v. Bier, 15 W. Va. 311; Dryden v. Swinburn, 15 W. Va. 234.
Section 1, Article 2, Chapter 53, Code, 1931, provides that a writ of quo warranto may be awarded and prosecuted in the name of the State of West Yirginia at the instance of the attorney general or the prosecuting attorney of any county against a corporation or a natural person in certain instances, one of which is against any person who intrudes into or usurps any public office; and Section 4 provides that in any case in which a quo warranto would lie the attorney general or the prosecuting attorney of any county, at his own instance or at the relation of any person interested, or any person interested, may in the name of the State of West Virginia apply to the circuit court or the judge, as mentioned in Section 2 of the same article, for leave to file an information in the nature of a writ of quo warranto for any of the causes and against any of the persons mentioned in Section 1.
Though it is true that only a candidate for nomination or election to a county office may institute and maintain an election contest concerning such office, Irons v. Fry, 129 W. Va. 284, 40 S. E. 2d 340, and that only the attorney general or the prosecuting attorney of a county can prosecute a quo warranto proceeding and only those officers or an interested person can prosecute a proceeding upon an information in the nature of a writ of quo warranto, Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757, 70 S. E. 2d 477; State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S. E. 2d *520683; State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994, each of these proceedings is available and affords a proper remedy to any person entitled to maintain any such proceeding to determine the eligibility or the qualification of any person to be elected to or to hold the office to which he has been returned as elected.
As, under the recent decisions of this Court in State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788; State ex rel. Harwood v. Tynes, 137 W. Va. 52, 70 S. E. 2d 24; and State ex rel. McKnight v. The Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 103 S. E. 399, the board of ballot commissioners is without authority to grant the relief for which the petitioners pray in this proceeding to investigate and determine the ineligibility of the Republican nominee for the office of sheriff of Upshur County and for that reason to omit his name from the official ballot to be used in the general election in November, the petitioners have failed to satisfy the requirement recognized and applied in an unbroken series of decisions of this Court and reaffirmed in State ex rel. Evans v. Kennedy, 145 W. Va. 208, 115 S. E. 2d, 73, decided at the April term of this Court, that he who seeks relief by mandamus must show a clear legal right to the remedy. Some of the many other cases to the same effect are Daurelle v. Traders Federal Savings and Loan Association of Parkersburg, 143 W. Va. 674, 104 S. E. 2d 320; Hockman v. The County Court of Tucker County, 138 W. Va. 132, 75 S. E. 2d 82; State ex rel. Koontz v. Board of Park Commissioners of the City of Huntington, 131 W. Va. 417, 47 S. E. 2d 689; State ex rel. Goloversic v. Arnold, 128 W. Va. 272, 36 S. E. 2d 209; Childers v. State Road Commission, 124 W. Va. 233, 19 S. E. 2d 611; Ebbert v. Bouchelle, 123 W. Va. 265, 14 S. E. 2d 614; Brumfield v. Board of Education of Logan County, 121 W. Va. 725, 6 S. E. 2d 238; Rusinko v. Shipman, 111 W. Va. 402, 162 S. E. 316; Antonovich v. State Compensation Comissioner, 110 W. Va. 273, 157 S. E. *521591; State ex rel. Woodyard Publications v. County Court of Hardy County, 108 W. Va. 166, 150 S. E. 152; State ex rel. Goshorn v. Johnson, 102 W. Va. 629, 135 S. E. 899. By reason of the failure of the petitioners to satisfy that basic requirement the writ should have been denied in this proceeding on that ground alone.
When a board of ballot commissioners places the name of a candidate upon the official ballot it discharges the duty imposed upon it by the statute and in so doing does not exercise authority beyond that conferred upon it by statute. In placing the name of the candidate upon the ballot it does not undertake to determine the question of the eligibility of such candidate to he elected to or to hold the office to which he seeks to he elected. When, however, it omits his name from the ballot on the ground that he is ineligible or disqualified to be elected to or to hold the office which he seeks, it fails to discharge its plain statutory duty and in determining the question of his eligibility or qualification as a candidate engages in the performance of a judicial act. This it may not do; and in each of the three cases of State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788; State ex rel. Harwood v. Tynes, 137 W. Va. 52, 70 S. E. 2d 24; and State ex rel. McKnight v. The Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 103 S. E. 399, the board of ballot commissioners was required to place the name of the candidate upon the ballot. In placing the name of a candidate upon the ballot the act of the board constitutes the performance of a ministerial duty; but when the board undertakes to determine the question of eligibility or qualification of the candidate and in so doing omits his name from the ballot it engages in the performance of a judicial act. See Marcum v. Ballot Commissioners of Lincoln, Logan, Mingo and Wayne Counties, 42 W. Va. 263, 26 S. E. 281, 31 L.R.A. 296.
In State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11, 168 A.L.R. 808, in discussing the nature of judicial power, this Court said: “It is the power which a *522regularly constituted court exercises in matters which, are brought before it, in the manner prescribed by statute, or established rules of practice of courts, and which matters do not come within the powers granted to the executive, or vested in the legislative department of the Government. The Legislature may impose duties, judicial in character, upon the courts, but having once imposed these powers it has no right to control the exercise thereof; and that, we think, constitutes judicial power.” It is clear that the question of the eligibility or qualification of a candidate to be elected to or to hold a public office is a judicial question which no administrative agency, such as a board of ballot commissioners, but only a court of competent jurisdiction, in the exercise of its judicial power, can consider and determine; and this it must do in a proper proceeding. In State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11, 168 A.L.R. 808, this Court said that an administrative officer can not exercise judicial power and that only courts of record and justices of the peace can exercise such power.
Article Y of the Constitution of West Yirginia provides that “The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.” This Court, in many cases, has been insistent and persistent in its effort to enforce the true meaning, intent and purpose of that article and to discourage and prevent any departure from the enforcement of its true meaning, intent and purpose. State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11, 168 A.L.R. 808. The Legislature can not impose upon any court a duty which requires the performance of an act not judicial in character. State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11, 168 A.L.R. 808; In re Proposal to Incorporate Town of Chesapeake, 130 W. Va. 527, 45 S. E. 2d 113; Sims v. Fisher, 125 W. Va. 512, 25 S. E. *5232d 216; County Court of Raleigh County v. Painter, 123 W. Va. 415, 15 S. E. 2d 396; Staud v. Sill, 114 W. Va. 208, 171 S. E. 428; Baker v. County Court of Tyler County, 112 W. Va. 406, 164 S. E. 515; Danielley v. The City of Princeton, 113 W. Va. 252, 167 S. E. 620; Hodges v. Public Service Commission, 110 W. Va. 649, 159 S. E. 834; Sutherland v. Miller, 79 W. Va. 796, 91 S. E. 993, L.R.A. 1917D, 1040. The Legislature does not possess the power to require any court to act as an administrative agency and any court which acts in such capacity violates the plain provisions of Article Y of the Constitution. State ex rel. Richardson v. County Court of Kanawha County, 138 W. Va. 885, 78 S. E. 2d 569; Sims v. Fisher, 125 W. Va. 512, 25 S. E. 2d 216. Because of the separation of the powers of government as provided by and required in Article Y of the Constitution, the Legislature can not confer judicial power upon the legislative department, Anderson v. Bowen, 78 W. Va. 559, 89 S. E. 677, or the executive department, or any administrative agency of either of those departments of government; the executive department can not exercise legislative power, State v. Mounts, 36 W. Va. 179, 14 S. E. 407, 15 L.R.A. 243; State ex rel. Miller v. Buchanan, 24 W. Va. 362; and the judiciary can not exercise legislative power, State of West Virginia v. Dent, 25 W. Va. 1. For those reasons the action of this Court in determining the question of the eligibility and the qualification of the Republican nominee for sheriff of Upshur County, in the first instance, for the board of ballot commissioners, is an attempt to confer judicial power upon the board of ballot commissioners, an administrative agency of the legislative department of government, and its action in requiring the board to omit his name from the official ballots to be used in the November election is an unauthorized exercise of judicial power because violative of the provisions of Article Y of the Constitution, which expressly prohibit the exercise of judicial power by either the executive or the legislative department of the government.
The settled law of this State, announced in many *524decisions of this Court, is that administrative agencies, such as a board of canvassers and a board of ballot commissioners, each of which is created and its powers and duties are prescribed by statute, can do only that which such agencies are by statute authorized to do. State ex rel. Wilson v. County Court of Barbour County, 145 W. Va. 435, 114 S. E. 2d 904; State ex rel. Thompson v. Fry, 137 W. Va. 321, 71 S. E. 2d 449; State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416; Funkhouser v. Landfried, 124 W. Va. 654, 22 S. E. 2d 353; Brazie v. Fayette County Commissioners, 25 W. Va. 213.
It is also well established by many decisions of this Court that the system of elections in this State is not of common law origin and that the exercise of the right of sufferance is regulated and controlled exclusively by constitutional and statutory provisions. Evans v. Charles, 133 W. Va. 463, 56 S. E. 2d 880; Simms v. The County Court of Kanawha County, 134 W. Va. 867, 61 S. E. 2d 849; State ex rel. Lockhart v. Rogers, 134 W. Va. 470, 61 S. E. 2d 258; State ex rel. Robertson v. County Court of Kanawha County, 131 W. Va. 521, 48 S. E. 2d 345; Brannon v. Perkey, 127 W. Va. 103, 31 S. E. 2d 898, 158 A.L.R. 631; State v. Edwards, 95 W. Va. 599, 122 S. E. 272; Booten v. Pinson, 77 W. Va. 412, 89 S. E. 985, L.R.A. 1917 A 1244. The manner of conducting elections in this State is governed by statutes and the power of the Legislature to deal with elections is plenary except to the extent that it is limited by the provisions of the Constitution of this State and of the Constitution of the United States. Evans v. Charles, 133 W. Va. 463, 56 S. E. 2d 880; State ex rel. Forsythe v. The County Court of Cabell County, 131 W. Va. 570, 48 S. E. 2d 412; Halstead v. Rader, 27 W. Va. 806.
As the statute, which creates the board of ballot commissioners and confers the authority it may exercise and imposes the duties it is directed to perform, does not undertake to authorize or empower, and in my judgment could not constitutionally authorize or empower, the board to determine the eligibility or the *525qualification of a candidate for public office or, on tbe ground of bis ineligibility or disqualification, to omit bis name from tbe ballots to be used at an election, it is clear that tbe board is without authority to perform either of those acts. As such acts, if performed by tbe board, would be unauthorized and for that reason also illegal, under the rule recognized and applied in tbe previously cited cases that tbe writ of mandamus will not be awarded to require tbe person to whom it is directed to perform an act which by law be is not required or empowered to perform, a writ of mandamus should not have been awarded in this proceeding to require tbe board to perform such unauthorized and illegal acts or either of them.
Though the tendency in this jurisdiction is to enlarge and advance the scope of the remedy by mandamus in order to afford the relief to which a party is entitled when there is no other adequate and complete legal remedy, the use of that writ is subject to certain restrictions and limitations. State ex rel. Vance v. Arthur, 142 W. Va. 737, 98 S. E. 418; Stowers v. Blackburn, 141 W. Va. 328, 90 S. E. 2d 277; Carter v. The City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747; Bailey v. Coleman, 123 W. Va. 510, 16 S. E. 2d 918, 137 A.L.R. 308; Cross v. West Virginia Central and Pennsylvania Railway Company, 35 W. Va. 174, 12 S. E. 1071. For instance mandamus does not lie when another specific and adequate remedy is available; or to compel the performance of an unauthorized or illegal act; or when there is no duty of the defendant to perform the act which the petitioner seeks to have performed; or to direct the exercise of discretion; and mandamus will not be permitted as a substitute for or to exercise the functions of a writ of error, an appeal or a writ of certiorari. See 12 Michie’s Jurisprudence, Mandamus, Sections 3 and 9, and the cases cited in the notes to those sections.
The use of the writ of mandamus is expressly authorized by Section 41, Article 5, Chapter 3, Code, 1931, for the purpose of expediting the ascertainment and *526declaration of the results of elections and the performance of other duties by election officers. The first sentence of that section provides that any officer or person, upon whom a duty is devolved by that chapter, may he compelled to perform such duty by writ of mandamus. The same section also 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.” (Emphasis supplied). As the board of ballot commissioners is under no duty and is without authority to determine the eligibility or the qualification of a candidate for public office, or to omit his name from the ballot on the ground that he is ineligible or disqualified to be elected to or to hold public office, any action by it of that character could not possibly constitute its legal performance of any statutory duty imposed upon it. For that reason alone this Court should have denied the writ of mandamus in this proceeding.
The original jurisdiction of this Court in mandamus does not extend beyond its authority to command a board of canvassers to do that which it is required by law, but has refused, to do. State ex rel. Wilson v. The County Court of Barbour County, 145 W. Va. 435, 114 S. E. 2d 904, decided at the April term of this Court; State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416. This principle, of course, applies to the statutory board of ballot commissioners. In the Wilson case a concurring opinion was filed by one of the judges of this Court, in which the holding that “The original jurisdiction of this Court in mandamus does not extend beyond its authority to command a board of canvassers to do that which it is required by law, but has refused, to do.”, was challenged as incorrect. That opinion, however, which is not supported by logic or authority and is contrary to the decisions of this Court in the Wilson and Bumgardner cases, represents merely the individual views of the writer of the opinion ; and notwithstanding the views expressed in that *527opinion, the holding of this Court in those two cases, of course, constitutes the law of this State on that point.
In this connection it is disturbing to observe the attitude of the majority, as indicated by its opinion and the conclusion reached, to disregard the numerous prior decisions of this Court which uniformly hold that a writ of mandamus will not he awarded to compel a person to whom it is directed to perform an unauthorized or illegal act or an act which it is not his legal duty to perform, and the numerous prior decisions which also hold that a person who seeks relief by mandamus must show a clear legal right to the remedy which he seeks. Especially am I surprised and disturbed by the action of the majority in refusing to follow and be governed by the three recent decisions of this Court in the Schenerlein, Harwood and McKnight cases, for those decisions are not only sound in principle but are and, under the salutary doctrine of stare decisis, should be regarded as binding authority to be adhered to by this Court. In my judgment the proper approach in the consideration and decision of a case is to study the prior decisions of the Court and in the light of such authority to adapt the personal view of the individual judge to conform to the applicable principles enunciated in such prior decisions unless it clearly appears that such former holdings are clearly wrong, and in that event they should not be ignored, disregarded or distinguished but instead should be expressly overruled.
Under the doctrine of stare decisis, a principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. 21 C.J.S., Courts, Section 187. See also Lyon v. Grasselli Chemical Company, 106 W. Va. 518, 146 S. E. 57. Stare decisis is a salutary rule entitled to great weight, and ordinarily should be strictly adhered to by the courts especially where a different ruling would work injustice to litigants. 21 C.J.S., Courts, Section 187. In In re Proposal to In*528corporate Town of Chesapeake, Kanawha County, 130 W. Va. 527, 45 S. E. 2d 113, this Court, quoting from Black’s Law Dictionary, Third Edition, said: “The doctrine of stare decisis rests upon the principle that law by which men are governed should be fixed, definite, and known, and that, when the law is declared by court' of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority.” In Marguerite Coal Company v. Meadow River Lumber Company, 98 W. Va. 698, 127 S. E. 644, this Court held in point 2 of the syllabus that “Where a question has been decided by this Court, and parties relying on the decision, have transacted important affairs which would be seriously affected by a change of rule announced in said decision, this Court will adhere to it in subsequent cases however it might be inclined to hold if the question were res integra.”
In Clark v. Figgins, 27 W. Va. 663, referring to the symmetry in the development of the common law and the doctrine of stare decisis, this Court used this pertinent language: “If a different course had been pursued, and hasty and ill-advised decisions made without regard to the precedents, the common law instead of showing symmetry in its perfection would be one incongruous mass, and no one could form any idea how a matter would be decided, as in each case the judge would decide according to his own peculiar notion of what in that particular case might be right; and we know, that it is often true, that what one would consider right in the particular case another would regard as wrong. Nothing keeps a judge so strictly in the line of his duty, as the feeling and constant realization of the fact, that he is bound by precedents. He knows that his opinion will be by the legal profession with all its astuteness subjected to the severest criticism, and if he dares to depart on a given question from the well marked line of precedents, either his ability or integrity is in great danger of being impugned. *529There is too much, clamor in this day to he governed less by precedents and to decide as each judge may think right in the particular case, and the reason given is, that the law as laid down by the precedents is uncertain. The only cause of this uncertainty is, that some courts in the hurry of business have rendered hasty decisions, without that consideration which ought to have been given to them, and perhaps have not cited a single authority, and then another judge or court in a great hurry has cited that case as an authority for another bad decision. It is only safe to know how the question has been settled, if settled at all, and then not depart from the rule; and if it has not been settled, to settle it after a thorough examination of the principles, upon which it must rest.”
In my judgment, any unwarranted departure from the doctrine of stare decisis, such as the majority has effected by the decision in this proceeding in disregarding though not overruling the decisions in the Schener-lein, Harwood and McKnig'ht cases, produces conflict, uncertainty and confusion in the reported decisions of this Court on the questions involved and such decisions will not be regarded with respect or as reliable authority. For example how will litigants know whether this Court, in the future, will adhere to the present decision by a divided court or its decision by a divided court in the Schenerlein case, or its unanimous decisions in the Harwood and McKnight cases; or how will a board of ballot commissioners know how to act if the questions here involved hereafter'come before it; or how will the members of the bar advise and assist a client when these questions again arise; or how will the trial courts of this State know how to rule when confronted with the same questions in cases which they are required to hear and determine? At host the law is a complex system of government and the proper application of its principles in the determination of the questions constantly arising in countless controversies is fraught with difficulty. For that reason the courts should strive to attain uniformity in decisions which *530involve the same or similar questions. This can only be achieved by careful consideration of and adherence to prior decisions in which such questions have been carefully considered and resolved. Hasty, ill considered or conflicting decisions which pose unanswered questions and create uncertainty, doubt and confusion in a legal system, which even when graced by uniformity in the decisions of its courts, is difficult to comprehend and administer, should at all times be scrupulously avoided. See remarks by my grandfather, Alpheus F. Haymond, a judge of this Court from 1873 to 1882, upon the occasion of his resignation at a session held at Wheeling, December 16, 1882. 21 W. Va., Memoranda, pages c to f.
The majority, disregarding the decisions of this Court in the Schenerlein, Harwood and McKnight cases, seeks to justify, by the prior decisions in Adams v. Londeree, 139 W. Va. 748, 83 S. E. 2d 127, and Pack v. Karnes, 83 W. Va. 14, 97 S. E. 302, its decision in awarding the writ which compels the board of canvassers to omit the name of the Republican nominee for sheriff from the ballots to be used at the general election in November.
In the Londeree case the petitioners sought a writ of mandamus to require the ballot commissioners of the City of South Charleston to strike the name of the defendant Londeree, a candidate for mayor, from the ballots to be used at the general election to be held in that city and to require the county clerk as registrar to strike his name from the registration record on the ground that, as a resident of the United States Naval Reservation, he was not a resident of this State and for that reason was ineligible for election to the office of mayor. The board of ballot commissioners did not undertake to determine his qualifications for that office and, instead of removing his name from the ballot as a nominee and candidate, performed its duty, in accordance with the holding of this Court in the Har-wood and McKnight eases, and placed his name on the ballot; and in that case this Court refused to disturb *531or reverse that action of the hoard of ballot commissioners. The controverted question in the Londeree case was whether the State of West Virginia had ceded to the Federal Government the United States Naval Eeservation by legislative enactment and the effect of that statute with respect to the status of Londeree as a resident and qualified voter of this State, and the major portions of the majority opinion and the dissenting opinion were devoted to and dealt with that question. The question of the authority of the board of ballot commissioners or of this Court, for such board, to order it to determine his qualifications for the office of mayor and to remove his name from the ballot, which as above stated was not done, was not fully considered and was not necessary to the decision of this Court in sustaining the action of the board in placing his name on the ballot. Point 1 of the syllabus in that case that “Any officer or person on whom any duty is devolved by Chapter Three of the Code, as amended, may be compelled to perform the same by writ of mandamus.”, though unnecessary to the decision of the case because that statute did not impose any duty upon the board of ballot commissioners to determine the qualification of the candidate and to remove his name from the ballot on the ground that he was ineligible for election to the office of mayor, is, of course, a correct but an abstract statement of that principle of law which should be applied in a case in which performance of an existing duty should be required. As that statement, however, was not applied in that case, it does not apply in this proceeding, and even though incorporated in a point of the syllabus, it does not, in my judgment, constitute binding authority which requires adherence by this Court in any case which may subsequently come before it. The same comment applies to the obvious dicta in the gratuitous advisory statements contained in this paragraph of the majority opinion in the Londeree case: “It is true, as pointed out in some of the cases just cited, that in some instances the qualification of a candidate may be determined in an election contest *532proceeding. Code, Chapter 3, Article 9. To say that it is the only available and adequate remedy, however, obviously would deny courts having original jurisdiction of such proceedings as mandamus, quo warranto or prohibition, any jurisdiction as to questions concerning qualifications of candidates for nomination or election to office. The cases cited are sufficient authority to the contrary. See State ex rel. Morrison v. Freeland, supra.” In In re Kanawha Valley Bank, 144 W. Va. 346, 109 S. E. 2d 649, this Court, citing Chesapeake and Ohio Railway Company v. Martin, 154 Va. 1, 143 S. E. 629, 152 S. E. 335, used this language: “Obiter dicta or strong expressions in an opinion, where such language was not necessary to a decision of the. case, will not establish a precedent.” In 17 Michie’s . Jurisprudence, Stare Decisis, Section 5,, ,the text, supported by numerous decisions of this Court and the Supreme Court of Appeals of Yirginia, contains this language: “General expressions, in every opinion, are to be read and considered in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in the subsequent suit when the very point is involved for decision.”
In the ease of Pack v. Karnes, 83 W. Va. 14, 97 S. E. 302, this. Court said, in the opinion that a person who was not lawfully nominated at a primary election but who later became the nominee of a party executive committee had no right by virtue of the action of such committee to have his name placed on the ballot. One of the reasons mentioned in the opinion for the statement that the candidate was not lawfully nominated at the primary election was his failure to file with the clerk of the county court at least seven days before the primary election an itemized sworn statement of his financial transactions in connection with his candidacy and his failure to file, such statement at any time within eight days after the primary election. The opinion .also states that if the name of a person regularly and legally nominated is omitted from the ballot *533that upon a showing of compliance with the law on his part he may by mandamus require the ballot commissioners to perform “their duty to put his name on the official ballot, though this would call for a reconvening of the hoard to discharge their duties lawfully.”, citing Frantz v. County Court of Wyoming County, 69 W. Va. 734, 73 S. E. 328; State ex rel. Heironimus v. Town of Davis, 76 W. Va. 587, 85 S. E. 779; and State ex rel. Lamb v. The Board of Ballot Commissioners of Wetzel County, 82 W. Va. 752, 97 S. E. 284. Though this Court held in point 1 of the syllabus in the Karnes case that “A citizen, taxpayer and voter has such interest as entitles him to maintain mandamus to compel a board of ballot commissioners to discharge their duties lawfully in respect to the preparation of ballots for a general election.”, it is significant that there is no syllabus in that case that states specifically that a hoard of ballot commissioners can he compelled in a proceeding in mandamus to remove or omit the name of a candidate from an official ballot because he is ineligible for election to the office which he seeks or for any other reason. Yet notwithstanding the omission of a syllabus of that character the majority in this proceeding by citing point 1 of the syllabus in the Karnes' case, which admittedly contains a correct statement of law which has no application to the questions here involved, relies upon the Karnes case as authority for its action in awarding the writ of mandamus in the case at bar. If, however, by any plausible prestidigitation or legal legerdemain the majority could consider the Karnes case as authority for its action in awarding a writ of mandamus it is sufficient to say that the reasoning on which the decision in the Karnes case as to the qualification of. the nominee or the validity of his nomination because of his failure to file the requisite financial statements in connection with his campaign, has been expressly disapproved by subsequent decisions of this Court. State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416; Varney v. County Court of Mingo County, 102 W. Va. 325, 135 S. E. 179; *534State ex rel. Harmon v. Board of Canvassers, 87 W. Va. 472, 105 S. E. 695; State ex rel. Hall v. County Court of Gilmer County, 87 W. Va. 437, 105 S. E. 693. Moreover, the holding in point 4 of the syllabus in the Karnes case that “And where there has been no lawful nomination at such primary election, the executive committee of a political party can not lawfully appoint a nominee with right to have his name placed by the ballot commissioners on the official ballot to be voted at a general election.”, has been superseded by a subsequently enacted statute, Section 23, Article 4, Chapter 3, Code, 1931, as amended, which provides that if any vacancy shall occur in the party nomination of candidates for office, caused by death, withdrawal, failure to make the nomination for the office at the primary election, or otherwise, it may be filled and the name of the candidate certified by the executive committee of the political party for the political, division in which the vacancy occurs. And furthermore, if the decision in the Karnes case could possibly be considered as authority for the action of the majority in awarding the writ in this proceeding, that case, having been decided prior to the decisions of this Court in the McKnight and Harwood cases and being inconsistent with the holding in those cases, has been actually, though not expressly, overruled and disapproved by those decisions.
In view of the foregoing the decision in the Karnes case is, indeed, a slender reed and an insecure foundation on which to base a subsequent decision by this Court.
As additional authorities in support of my contention that the relief sought by the petitioners in the case at bar can not be obtained in a proceeding in mandamus, I mention Varney v. The County Court of Mingo County, 102 W. Va. 325, 135 S. E. 179; England v. Board of Canvassers of Raleigh County, 102 W. Va. 696, 136 S. E. 266; and State ex rel. Phillips v. Heatherly, 102 W. Va. 116, 134 S. E. 594. In the Varney case, an original proceeding in mandamus, this Court held *535in point 1 of the syllabus that “A county court, sitting as a canvassing hoard, has no authority to pass on the eligibility of candidates.” In the Phillips case this Court also held in point 1 of the syllabus that “A board of canvassers has no power to inquire into and determine the right of a candidate to the office voted for on the official ballot, upon its own motion, or upon the motion of the incumbent of the office who was not a candidate on such ballot.” The reasoning of those cases directly applies to the board of ballot commissioners, an administrative agency, which, like the board of canvassers, is created and its powers and duties are defined and limited by statute. In Martin v. White, 74 W. Va. 628, 82 S. E. 505, a mandamus proceeding in which the question of the qualifications of White and other members of a city council to hold that office was involved, this Court used this pertinent language: “The question whether White and the others were in fact disqualified is not cognizable in mandamus.”
My principal reason for this dissent is to show that mandamus is not the proper proceeding to determine, in the first instance, the qualification of a candidate for public office and to require the board of ballot commissioners to strike or omit his name from an official ballot on the ground that he is ineligible to be elected to or to hold the office for which he is a candidate. It is not my purpose in this proceeding to consider and determine upon the facts in this case the application, meaning and effect of the provisions of Article IX, Section 3 of the Constitution that the same person shall not be elected sheriff for two consecutive full terms; nor shall any person who acted as his deputy be elected successor to such sheriff, nor shall any sheriff act as deputy of his successor; nor shall he, during his term of service, or within one year thereafter, be eligible to any other office. In a proper proceeding, such as an election contest, a quo warranto proceeding, or a proceeding upon an information in the nature of a writ of quo warranto, in which the question of the eligibility of the Republican nominee *536for the office of sheriff could be properly presented for decision after his election should he he elected to that office, I .would he inclined to hold that the foregoing constitutional provisions would render him ineligible for election to that office at the general election to he held in November of this year. But for the reasons set forth in this dissenting opinion, that question may not be determined in this original proceeding in mandamus. It will not do to say that a candidate may be declared to be ineligible in a proceeding in which that question may. not be considered or determined because in a proper proceeding to determine that question his ineligibility would likely be readily and clearly established. It is just as logical to proclaim that a person could be tried and convicted in a suit in equity because the evidence there produced would undoubtedly result in a verdict of guilty in a criminal prosecution in a court of competent jurisdiction.
Concerning the function and the duty of the board of ballot commissioners, Judge Brannon, speaking for the majority of this Court in Marcum v. Ballot Commissioners of Lincoln, Logan, Mingo and Wayne Counties, 42 W. Va. 263, 26 S. E. 281, 31 L.R.A. 296, said: “Now, I confidently assert that, when a name of a candidate for office so certified comes before this board, it is its bounden duty to put it on the ballot, and that this duty is ministerial, because the board has no discretion as to putting it on. Ministerial is the nature of the duty of the board when but one certificate of nomination is before it.” In the dissenting opinion filed by Judge English in that case, after quoting two syllabus points from the case of The Board of Supervisors of Mason County v. Minturn, 4 W. Va. 300, that “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 *537duties, 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 certiorari.”, made this sound and significant pronouncement: “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.” By the decision of the majority, this Court has acted for the board of ballot commissioners and, though the issuance of the writ compels it to act, there is, literally and in law, “nothing left for them to do.”
Manifestly the majority seeks to justify its decision to award the writ on the theory that its refusal to do so would deny, renounce, or unduly restrict the jurisdiction of this Court in a proceeding in mandamus and that theory is evidently based upon the reasoning expressed in obiter dicta in the majority opinion in the Londeree ease. These dicta, which are entirely unsupported by and are contrary to the prior decisions of this Court concerning the question of the eligibility of a candidate for a public office and the remedy of an election contest to determine that question are: “ * * * since the contest can not arise until after the election, to hold that mandamus can not be invoked in such cases as to a nominee for office would have the effect of denying any remedy prior to the election and, where the candidate elected could not qualify as to the office sought, would have the effect of rendering the election as to that office a nullity. Surely no such result' could have been contemplated. It would not tend to induce orderly elections.”; and “No jurisdiction to determine such question was vested *538in the board of ballot commissioners by any statute. Therefore it had no jurisdiction to make any independent investigation in order to determine such qualification. But lack of jurisdiction of such a board can not be determinative of jurisdiction of a court having original jurisdiction in mandamus.”
The substance of these statements is that though there may be no remedy to determine the qualification of a candidate until after his election, there should he a remedy which could be invoked before the election; and that because there is no such remedy jurisdiction in mandamus automatically arises to determine, before the election, the identical question that is determinable in an election contest after the candidate has been elected. Neither of the foregoing assertions is sound in principle or is supported by any authority. To the contrary are the many cases, some of which have been cited in this opinion, which hold that in mandamus the petitioner must show a clear legal right to the relief which he seeks, that such right must exist when the proceeding is instituted and is not determined but is enforced in such proceeding, and that the defendant is under an existing duty to perform the act which the petitioner has the right to have him perform. If these essential elements do not exist, and they do not exist in the case at bar, no court has jurisdiction to entertain such proceeding or to award the writ. If there is a need for a remedy to determine the eligibility of a candidate for public office before he is elected, such remedy must be supplied by legislative enactment and not by judicial legislation. It is evident that the petitioners in this proceeding do not have a clear legal right to the writ and that they seek to have such right determined in this proceeding- instead of showing its existence when the proceeding was instituted. The board of ballot commissioners is under no duty to do what the petitioners seek to have it compelled to do. And surely there is no duty of that kind for this Court to perform. Refusal of the writ would not deprive this Court of its jurisdiction in mandamus; and in a *539proper proceeding it would continue to have all the jurisdiction that it has always had. By its action in awarding the writ it converts a mandamus proceeding into an election contest before an election occurs, which it is not empowered to do, and assumes and exercises a jurisdiction which it never possessed. As pointed out in point 3 of the syllabus in The Board of Supervisors of Mason County v. Minturn, 4 W. Va. 300, which has never been disapproved but has been consistently adhered to by the subsequent decisions of this Court, there are instances in which ‘ ‘ the court has no jurisdiction by mandamus.” In my judgment the present proceeding is a typical example of a case in which this Court, notwithstanding its full and complete jurisdiction to compel by mandamus the performance of a duty by a public officer at the instance of a person who has the legal right to the performance of such duty and after deciding for the board a judicial question which the board has no power to determine, is without jurisdiction to award a writ of mandamus to compel it to perform an act which it has no lawful authority to perform.
It should be observed that in the dissenting opinion filed by me in the Londeree ease I stated that I would have awarded the writ of mandamus sought but denied in that case. As previously pointed out however, and as indicated by the majority opinion and the dissenting opinion, the principal controverted question was whether Londeree, a resident of the United States Naval Reservation, was a qualified voter and involved his eligibility as a candidate for election to the office of mayor of the City of South Charleston. The question of the authority of the board of ballot commissioners to remove his name from the ballot to be used at the general election to be held in that city was not briefed, argued and considered as a controlling issue as it has been briefed, argued and considered in this proceeding. If that issue had been then so presented and considered, I would have denied the writ on the ground that the board of ballot commissioners was *540without authority to omit his name from the ballot and that this Court lacked jurisdiction in a mandamus proceeding to compel the board to perform an act which it had no lawful authority to perform.
For the reasons stated and under the numerous authorities cited and quoted from in this dissent I would deny the writ sought by the petitioners in this proceeding.