dissenting:
Very respectfully, but quite earnestly I dissent. With deference to my four associates, I believe that the majority opinion in relation to the basic questions decided has asserted propositions which are utterly at variance with legal principles which I have conceived to be both fundamental and clear.
My paramount disagreement is based on my confident belief that the majority opinion, in authorizing this second local option election, has read into the statute a provision which the legislature, in its wisdom and discretion, might have inserted, one which so easily could have been inserted, but one which, for sound reasons and common sense, the legislature may have studiously and designedly declined to include.
The statute is sui generis. The portion with which we are concerned deals solely with a legislative grant to county courts of authority to hold local option elections in respect to the Sunday Closing Law. It deals with that and nothing more. It is complete in itself. It is not in any sense related to or in pari materia with primary and general election laws which provide for the nomination and election of public officials. Therefore, the case of State ex rel. Revercomb v. O’Brien, 141 W. Va. 662, 91 S. E. 2d 865, cited in the majority opinion, is in no sense in point.
County courts have no inherent powers. They have only such powers as are granted to them by the Constitution and the legislature, perhaps including such additional powers as *137are necessarily implied in those expressly granted. Mohr v. County Court of Cabell County et al., 145 W. Va. 377, 115 S. E. 2d 806. The County Court of Cabell County had no right, power, authority or jurisdiction to hold a second local option election unless the power to do so was granted to it by the statute.
Elections are purely creatures of statute. No governmental body has any inherent power, right, jurisdiction or authority to hold any election, general or special. A county court has no inherent right, power, authority or jurisdiction to authorize qualified voters to vitiate or nullify, in whole or in part, a state legislative enactment. If the county court has authority to authorize a second local option election, or an endless succession of local option elections on the single issue provided by statute, that authority must be granted by the statute itself. It can emanate from no other source. 16 C.J.S., Constitutional Law, Section 142, page 682; 29 C.J.S., Elections, Sections 66, 67, 69 and 82, pages 90, 91, 92 and 106; 18 Am. Jur., Elections, Sections 2 and 6, pages 179 and 182.
The legislature put the Sunday Closing Law in effect throughout the State. Therefore, there was no occasion for the legislature to provide for a local option election in any county to determine by popular vote whether the Sunday Closing Law should become operative, or should continue to be operative in such county. To that extent the people, through their legislative representatives, have already spoken. The reason for the legislature’s failure to provide other than for the single issue to be voted on is, therefore, obvious.
The legislature, therefore, added to the Sunday Closing Law a provision to authorize any county court “to call a local option election for the purpose of determining the will of the voters”, (italics supplied) as to whether the law should continue in operation within that county. The legislature could have provided for a succession of elections and could have provided for a minimum of time required to elapse between such elections, as similar statutes so generally do. It did not do so. The statute does not contain the slightest suggestion of a grant of authority to hold more *138than one election, and that to be upon the one, single issue prescribed by the statute.
Within a period of weeks prior to the date the Court announced the majority decision in this case, it announced a unanimous opinion in another case which, in my judgment, wholly supports the views I have undertaken to express to this point, a unanimous opinion which, in my judgment, is completely at variance with the majority opinion in the present ease. I refer to the case of State ex rel. McDaniel et al. v. Duffield et al., 149 W. Va. 19, 138 S. E. 2d 351. In that case members of the fire department of the City of Nitro sought to withdraw from the state public employees retirement system and to receive a refund of contributions made. The Court held that, the matter being wholly statutory, and the City of Nitro having elected to become a participating employer under the state retirement plan, it could not withdraw because the statute contained no provision, for such withdrawal. The Court stated (138 S. E. 2d at page 355): “The powers of a municipality are derivative rather than inherent and any action it takes presupposes the existence of authority to perform such act.”
I dissent also because:
(1) I believe that the tardiness of the petitioners’ application to this Court has caused the Court to be stampeded into almost unprecedented haste, denying to the respondents even reasonably adequate time to defend and depriving the Court of reasonably adequate time to study, consider and decide the important and difficult questions presented for decision.
(2) The Court decided the case on unresolved issues of fact presented by allegations of the mandamus petition, a thorough and complete denial of such allegations by answer, without permitting or requiring such unresolved issues of fact to be determined by proof.
(3) The answer alleged hundreds of instances of false and fraudulent signature, including duplications of signature, signatures of persons not registered to vote, signatures of persons residing not only outside Cabell County but also *139outside this state, and various instances in which petitioners in this very mandamus proceeding had signed the petition more than once. These allegations were admitted to be true by petitioners’ demurrer to the answer. In spite of all this, the Court granted the relief prayed for by the petitioners.
(4) By some sort of legal legerdemain or manipulation of judicial language, the Court held that the burden was cast upon the respondents, despite the admission that the petition was in a great measure false and fraudulent, to prove negatively that the petition did not contain a sufficient number of genuine signatures of persons eligible to vote in Cabell County. The issue of fact concerning the genuineness and sufficiency of the signatory petition was directly raised by a categorical denial paragraph by paragraph of every essential of the mandamus petition, supplemented by reference to hundreds of instances of false and fraudulent signatures.
(5) The Court avoided reference to any presumption in relation to the signatory petition in the circumstances of this case, though this was one of the main points of concern during oral argument.
It is my understanding that we indulge in presumptions of regularity or integrity when nothing to the contrary appears. No presumption can stand in the face of facts. Dwight v. Hazlett, 107 W. Va. 192, 200, 147 S. E. 877, 880, citing Wigmore and Jones in their respective works on Evidence. See also Beckley National Exchange Bank v. Providential Life & Accident Ins. Co., 121 W. Va. 152, 154, 2 S. E. 2d 256, 257; Lambert v. Metropolitan Life Ins. Co., 123 W. Va. 547, 17 S. E. 2d 628; Jenkins v. Spitler, 120 W. Va. 514, pt. 2 syl., 199 S. E. 368; State v. Dodds, 54 W. Va. 289, 296, 46 S. E. 228, 231; 7 M.J., Evidence, Section 17, page 347; 31A C.J.S., Evidence, Section 117, page 210. In line with the legal principle referred to immediately above, it was held in State ex rel. McNary v. Olcott, 62 Ore. 277, pt. 4 syl., 125 P. 303: “Where referendum petitions contain evidence of forgeries, perpetrated either by the circulators, or with their connivance, the prima facie case in favor of the genuineness of the petitions is overcome; and the burden is on those upholding the validity of the petition to establish the genuineness of each *140signature.” To the same effect, see 28 Am. Jur., Initiative, Referendum and Recall, Section 25, page 453.
Mandamus is not a writ of right. Almost to the point of triteness and monotony, this Court has reiterated the proposition that one seeking relief by mandamus must establish “a clear legal right” to the relief he seeks. The burden of proof is on the plaintiff, upon the petitioner in mandamus. While the burden of going forward with the evidence may shift, the burden of proof never shifts. Brace v. Salem Cold Storage, Inc., 146 W. Va. 180, pt. 4 syl., 118 S. E. 2d 799. Nevertheless, on some basis I am unable to comprehend, the Court has relieved the petitioners, on the factual issue so clearly presented, of the burden of proving “a clear legal right” to the relief sought, but in some way has cast on the respondents a burden of proving negatively the essential facts which should he peculiarly within the knowledge of the petitioners.
During the course of the oral arguments, the contention of counsel for the petitioners, as I understood it, seemed to be substantially to this effect: Though we admit, expressly or tacitly, by demurrer or otherwise, that hundreds of signatures on the petition are not genuine, and that some of the mandamus petitioners signed the petition various times each, and that it follows that, pro tanto at least, the petition is false and lacking in genuineness, still we claim we are entitled to the benefit of a presumption that the balance of the petition is true and genuine. A startling, bold contention, to say the least! While the Court avoided a discussion of this proposition in its opinion, it is difficult to conceive how the Court could have decided as it did without acceding to this fantastic contention made by counsel for the petitioners.
(6) The Court states that the language of the statute is “clear and unambiguous” in the grant to the county court of a right to hold more than one local option election on the single issue the legislature provided for submission to the voters; and impliedly the Court holds that the statute, by clear and unambiguous language, has granted to the county court the power to hold an endless succession of such elections at each primary and general election for years without *141limit until opponents of the Sunday Closing Law receive the favorable vote they desire. The Court casually and adroitly avoids saying whether thereafter there could be another election. In such an election, the sole issue provided by the statute would be quite awkward and inappropriate, to say the least. Of course, the Court might, in such a case, say that the language of the statute is “clear and unambiguous” in granting to the county court a right to hold an additional local option election, at the instance of proponents of the Sunday Closing Law, on an issue suitably framed for that purpose, to determine whether the Sunday Closing Law should again become effective within the county. On the other hand, if, as I apprehend, the Court would be unable to find in the statute a grant of such authority, I believe it must follow that the Court in this case has reached a result of quite questionable constitutionality. I do not believe the Court had a right to avoid a decision of that question presented in this case.
A point I wish to emphasize is that the Court failed to point out anywhere in its opinion the precise “clear and unambiguous” language of the statute which grants to the county court the right or authority to call the second election on the single issue upon which the will of the electorate previously had been determined.
Language of a statute which is clear and unambiguous cannot be construed but must be applied in accordance with the legislative will clearly expressed. That is the holding of the Court. It should not have been difficult for the Court, therefore, to have referred definitely, precisely and readily to the “clear and unambiguous” language by which that power was granted by statute to the county court. At that point I find two interesting things in the majority opinion:
(a) The majority opinion places considerable emphasis on Cohen v. Mortgage Securities Co., et. al., 96 W. Va. 676, 123 S. E. 793, in which the Court held that the indefinite article “a” when used in a restrictive covenant was used in a generic sense and included a reference to more than one “one-family house.” From this it is reasoned by the majority opinion that the phrases in the statute, “a local option *142election”- (used at least twice), “a petition” (used at least twice), “said petition,” “the county court shall enter an order,” “such local option election” and “prior to the date of said election” are used in a similar sense and refer to the plural, apparently in numbers without limit. According to my comprehension and understanding of such matters, the Court, in its reference to and application of the Cohen case was getting precariously close to “construing” the “clear and unambiguous language” of the statute; so close, in fact, that I am unable to discern or comprehend the difference.
(b) Another remarkable thing about the majority opinion, the one which takes me finally back to my beginning point, the point of our sharpest disagreement, is stated in the second point of the syllabus as follows: “In the absence of a clear intent to the contrary appearing from the language therein, Code, 61-10-28, as amended, will be regarded as providing for more than one local option election * * *.” (Italics supplied.) The same proposition is stated in the opinion. After referring to the contention that the statute does not grant authority to the couny court to submit again to the electorate the statutory issue upon which “the will of the voters” had been ascertained in a local option election previously held pursuant to the statute, the Court stated: “This Court is not in agreement with that contention and believes that if the legislature had so intended it easily could have, and would have, said so. The absence of any language to that effect, we believe, is conclusive of the question and shoiws that more than one local option election could be held * * *.” (Italics supplied).
As I read these quotations from the syllabus and from the opinion, they represent a holding that the legislative grant to the county court of this power or authority to hold an additional local option election flows necessarily from the failure of the legislature expressly to negate or to prohibit the the exercise of the right, power or authority. To me the language can have no other meaning. Indeed, I cannot conceive of any other method of reasoning by which the Court could have reached the result it reached in the case. To me this is a novel, startling and wholly unsound doctrine. Such *143right, power or authority, not being inherent in the county court, could not emanate from any source other than from a statutory grant thereof. The majority opinion, I believe, flagrantly omits any reference to any statutory language by which such right, power or authority was created or granted.
For the reasons stated, I would have denied the writ.