dissenting:
I dissent. It is with deference and respectfully that I find myself in disagreement with three of my brethern. This Court, in three recent decisions, Copley v. Chambers, 146 W. Va. 674, 123 S. E. 2d 232; State ex rel. Duke v. O’Brien, 145 W. Va. 600, 117 S. E. 2d 353; State ex rel. Zickefoose v. West, 145 W. Va. 498, 116 S. E. 2d 398, held that a de jure deputy sheriff who had “acted as deputy for a sheriff duly elected to a full term” is not eligible to be elected sheriff for the next succeeding full term. In the Zickefoose case this Court held that the pertinent language of the constitution was clear and unambiguous and not subject to interpretation or construction. It is my opinion that the majority herein has substituted the word “like” for the word “as” in Article IX, Section 3 of the Constitution of this state and if that is the majority’s intention, in my opinion they should have overruled the three cases above cited.
If this constitutional provision is not clear and unambiguous as we have heretofore held, but is subject to interpretation, and the majority has interpreted the word “as” to mean “like”, it will be interesting to know what they *489will say when we are faced again with a situation where a de jure deputy, having served under a present sheriff, attempts to succeed him by filing for that office. In other words, it is my opinion that a person can only act as a deputy or like a deputy and that the two situations are distinct. It is not denied that the defendant was never appointed deputy sheriff of Clay County, that his name was never submitted to the county court by the sheriff for approval, which is mandatorily required before he can become “a deputy sheriff”, and that he never received one cent of salary for whatever work he did- in the sheriff’s office of Clay County during the term of his son. It is my opinion that he was not a de facto deputy sheriff and I believe the case of State ex rel. Bailey v. Wayne County Court, 92 W. Va. 67, 114 S. E. 517, has clearly established a precedent for that conclusion. This is the second syllabus point of that case: “A valid election or appointment of a person to an office or other position at or before he enters upon his duties is not a prerequisite to his status of de facto officer. It suffices if he is not a mere usurper of the position he holds, and that he bona fide holds it under color of an election or appointment, irregular and unauthorized though it may be.” (Italics supplied.) It is not even contended in this case that the defendant became a de facto deputy sheriff “under color of an election or appointment, irregular and unauthorized though it may” have been. I find no decision of this Court to the contrary and none is cited in the majority opinion. It is admitted that he was not a de jure officer and if he was not a de facto deputy sheriff that leaves only the term usurper to describe his status in the courthouse of Clay County.
Reference is made in the majority opinion to the relevant discussions of delegates to the constitutional convention contained in Volume II, Debates and Proceedings of the First Constitutional Convention of West Virginia, at pages 598 and 599, and, for the benefit of those who may not have that volume, reference is made to the Copley case wherein I quoted at great length from the statements made by the delegates, beginning at page 682 and continuing through *490page 686 of 146 West Virginia Reports. Either I or the majority have had some trouble with the words used by those gentlemen in this regard and I thought they were reasonably simple words which meant the same thing then as they do now.
It is my opinion that the defendant did not become a deputy sheriff because of any silent approval or silent consent that the sheriff may have given to his activities or the knowledge of the county court that he was acting very much like a deputy sheriff. I believe it to be true that in an action against the sheriff for an act of the defendant the sheriff might have been estopped to deny defendant’s status but that would not change the real situation. It may be true also that the people of Clay County need help in ridding themselves of the Exline family and if I were a voter of that county I might participate in such a crusade. However, for some strange reason the people of that county keep right on electing Exlines and I would not, without authority to do so, amend the pertinent section of the constitution in order to give the minority political relief.
There is no question but that under the constitution and applicable statutes no person can become a deputy sheriff except by appointment of the sheriff and approval thereof by the county court, or if the county court refuses to give its approval, Section 1, Paragraph (a) (3), Article 3, Chapter 6, Code, 1931, as amended, provides that the sheriff may petition the circuit court for the appointment of a “deputy or deputies to perform temporary service or duty”. This is the language of Hockman v. Tucker County Court, 138 W. Va. 132, 75 S. E. 2d 82: “. . . The sheriff derives his power to appoint his deputy from the above quoted statutory provision and his prospective or unconfirmed appointee to that office has no constitutional or vested right to such office. An appointee to public office, in instances in which confirmation of the appointment is required by law, has no right to hold the office until after the appointment is confirmed. . . .” If I may speculate, as the majority has done, it would be to say that this Court has this day opened the door for wholesale violations of Article IX, Section 3 of the *491Constitution, unless, of course, this Court when it has the next case before it holds that “as” in that section means what it says and that it does not mean “like”. However, if the majority would not accept that, then the language would have to be “nor shall any person who acted as or like his deputy be elected his successor. . . .”
In the 5th point of the syllabus the majority states that a person by performing “the official duties of such office [deputy sheriff] with the approval and consent of the sheriff for a period of four years, . . .” is ineligible to be a candidate for sheriff. (Italics supplied.) As I construe its prior decisions, the Court has heretofore held that a person who has acted, for any period of time however short in duration, as deputy sheriff is ineligible to be elected sheriff for the next succeeding full term. Would the Court’s decision in this case have been the same had Arnold Exline “acted” as deputy sheriff for only twenty-four hours? If not, where in the future will we draw the line? The Court in the present case has held that Arnold Exline is ineligible because he performed some, but by no means all, the duties normally performed by a deputy sheriff. To what extent, and for what period of time, may one “act” as a deputy sheriff without becoming ineligible? I believe that many fine men and women presently employed in various capacities in sheriffs’ offices throughout the state will regret the fact that such perplexing and important questions have been left dangling in midair by the majority opinion in this case. Perhaps the framers of the constitution should have provided that any person employed by a sheriff in his office during all or any part of his four-year term would be ineligible to be elected sheriff for the next succeeding full term. Hard cases make bad laws. We should not undertake to rewrite the constitution according to our notions of what it should have provided, or to substitute our judgment for that of those who did write it. I would reverse the judgment of the Circuit Court of Clay County and dismiss the petition.
I am authorized to state that Judge Calhoun joins in this dissent and the views expressed herein.