concurring:
I concur. However, upon the question of whether mandamus is a proper remedy in this proceeding to require the Ballot Commissioners to omit the name of Suder from the general election ballot, and as further answer to the contention that the courts are helpless in this matter except by quo warranto, a proceeding upon an information in the nature of quo warranto, or a contest subsequent to the general election, additional authority to that cited in the majority opinion is deemed appropriate.
In Branton, et al. v. Adams, et al., (Cal.), 243 P. 2d. 26, a candidate for the office of judge was not qualified to hold that office for the reason that he was not a practicing attorney, but the clerk of the court, whose office is analogous to the Board of Ballot Commissioners in this State, took the position that he should place the candidate’s name on the ballot since it was “not for him to determine the fact of eligibility or none.” A writ of mandamus was issued directing the clerk “to omit from the ballot” the name of the ineligible candidate. Similar action was taken by the same court on the same day in Walter v. Adams, et al., (Cal.), 243 P. 2d. 21. To the same effect are the California cases of Williams v. Chappell, 66 P. 2d. 147; Donham v. Gross, et al., 290 P. 884; Felt v. Waughop, 225 P. 862. It will be noted in an examination of those cases that the word “omit” is used in the mandate without hesitation.'
In O’Hanlon v. Calvert, (New Jersey), 95 Atl. 631, a peremptory writ of mandamus was issued directing *541a clerk of a county court to not print the names of such nominees on the official ballot when such clerk had taken the position that he would put such names on the ballot “unless otherwise directed by order of the court.”
In People ex rel. Lempp v. Board of Elections, 178 N.Y.S. 516, a sheriff died in office and a special election was held. The term of office under the Constitution was three years and the question arose as to whether the sheriff who had been elected at the special election would serve for the unexpired term or for the term of three years. The Constitution provided that sheriffs shall “he ineligible for the next term after the termination of their offices.” In the opinion the court said: “* * * And if there is no vacancy the ballots should not contain the names of any candidate for that office. To permit it to he otherwise would produce confusion, as well as incur needless expense. This form of proceeding is the proper one in which to raise the question. * * *”
In State ex rel. Hehr v. Berry, (Ohio), 9 N. E. 2d. 699, a statute provided that no person should he eligible to hold the office of county engineer “or he elected or appointed thereto” except a registered engineer. There was a demurrer to the petition for a writ of mandamus directing the members of the board of elections to omit the name of a candidate for that office alleged to be ineligible. The demurrer admitted the allegation of ineligibility and the writ was granted. In the per curiam opinion the court stated that no “jurisdiction is vested either in the hoard of elections from the county or secretary of state” to determine whether a person who has been nominated for office is eligible to he placed upon a ballot in a general election. The court then said: “Where, however, a court of competent jurisdiction in an action in mandamus brought for the purpose of compelling a hoard of elections to omit the name of such candidate from the ballot, on the ground of disqualification of *542the candidate, determines that the person nominated as above set forth does not possess the qualifications of a candidate for the office for which he is nominated, public interest and the law require that the ballot contain only the names of qualified candidates, and that the name of such disqualified person be omitted by the board of elections from the ballot. * * *” To the same effect is Barklow v. Appel, et al., (Ohio), 137 N. E. 2d. 674.
In State v. Gray, (Fla.), 25 So. 2d. 492, a statute provided that if the number of legal candidates of any political party for any office shall not exceed the number required to be nominated to such office the names should not be printed on the primary election ballot, but that such candidates were nominated and entitled to a certificate to that effect. The petitioner sought a writ of mandamus to require the secretary of state to issue such a certificate to him as a democratic party nominee for the office of Solicitor of Dade County. Another candidate had filed for the office, but paid only $126.00 of the statutory fee for filing of $225.00 within the statutory period, but shortly thereafter paid the remainder of the fee. The court held that mandamus would lie commanding the respondent to omit the name of “the candidate who had not paid his filing fee within the statutory period.” Perhaps it should be noted that three of the justices concurred in the majority opinion, one concurred specially, and two dissented.
The question arose in the Delaware case of State ex rel. Roman, et al. v. Tatnall, et al., 32 Atl. 2d. 783, as to whether Tatnall was eligible to be a candidate for the office of member of the council of the City of Wilmington since he was at that time holding the office of justice of the peace of the State of Delaware. The members of the Department of Elections for New Castle County were respondents in a petition for a writ of mandamus directing them to omit from the ballot the name of Tatnall, inasmuch as it was alleged that he was ineligible by reason of a provision *543of the statutory law of Delaware. The writ was granted as prayed for and the pertinent portions of the opinion will be quoted from at some length:
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It was urged that the Department of Elections is an administrative body, and that the Act creating it does not expressly, or by implication, vest the Department with any judicial power, function or duty to inquire into the eligibility of any candidate, the regularity of his nomination, or the constitutionality of any statute; * * *.
«ft ft ft
“The Attorney General under his next or second argument raised the question as to whether or not there exists an adequate remedy at law. He contended that Mr. Corsano’s name must be placed upon the ballot, and that a determination concerning his eligibility for office or the regularity of his nomination would have to be inquired into by the members of council under Paragraph 42 of the City Charter, the pertinent provisions thereof being as follows: ‘It shall be the judge of the election returns and qualifications of its members, and of all officers of the corporation.’
“He contended that the State and not the relator herein is the real party in interest, and the question was not whether the relator has a legal remedy after election, but rather whether or not the general public which he represented has a legal remedy after election. He said that it must be assumed, and, as a matter of law, the council would protect the interest of the public in disqualifying anyone not eligible to be seated therein, and that the duty which the relator requested had been completely reposed by statute in City Council.
“The logical conclusion to be deducted from the argument advanced would be to say that the qual*544ified electors of the Fifth Ward were not entitled to vote for a candidate in fact. I thought they were.. I could determine no good reason why any ballot should contain the name of any person who could not in fact be a candidate. The very presence of his name on the ballot would only operate to deprive uninformed electors of their votes to the injury of one or more of the actual candidates, and to the possible perversion of the true popular will. To give to the certificate of nomination in this case the conclusive effect contended for would have been, it seems to me, to elevate form above substance. The law certainly contemplates a submission to the electors of a choice between persons who are candidates in fact, and this can only be accomplished by determining prior to the printing of the ballots whether or not Mr. Corsano was or was not a candidate in fact.
It is clear from the above cited cases that, upon the precise question of whether mandamus is the proper remedy under the circumstances of the instant case, the decision is in accord with the better reasoned authorities elsewhere, and which, incidentally, constitute the weight of authority.
It was clearly the intention of the Legislature, by Chapter 25 of the Acts of 1893, to invest in the citizens, taxpayers and voters of this State a remedy for the removal of a prospective candidate, who is clearly ineligible under the organic or statute law of this State, from an official election ballot, and such intention was recognized and given effect in Pack v. Karnes, 83 W. Va. 14, 97 S. E. 302. To hold otherwise is to deprive the voters of their franchise in regard to a particular office by forking them to either abstain from voting for a candidate for that office or to cast their ballots for a person who cannot serve, thus rendering a free election a nullity and reposing the right to name the officer in the person or agency having the appointive power to such office. This, I submit, perverts the intention of the Legislature by returning to the case law as pronounced in the decisions prior to the enactment of Chapter 25, Acts of 1893, and adhering *545thereto as though such statute had never been enacted. It is true that there are methods, subsequent to an election, by which the title to an office may be determined. However, these remedies — election contest, quo warranto, or upon information in the nature of quo warranto — are not available to the electorate. Only a defeated candidate may contest his opponent’s election. In the instant case, it is unlikely that the defeated candidate would go the expense of such a proceeding, in the event Suder is victorious, when he could not thereby secure for himself the office of Sheriff of Upshur County. Quo warranto could be prosecuted only by the Prosecuting Attorney of Up-shur County or the Attorney General in their discretion, two "gentlemen whose identities are not now capable of ascertainment. If they declined to proceed in this manner they could not be forced to do so. A proceeding upon an information in the nature of quo warranto might be prosecuted by an “interested person.” A casual examination of the majority and dissenting opinions in State ex rel. Morrison, et al. v. Freeland, 139 W. Va. 327, 81 S. E. 2d. 685, is sufficient to indicate the almost impossibility that any such “interested person” exists in this case.
I would overrule or disapprove the language used in every decision of this Court subsequent to Pack v. Karnes, 83 W. Va. 14, 97 S. E. 302, that is not in accord with the clear rule laid down in that case.