dissenting:
I dissent. It is my opinion that the judicial rule laid down in these cases as to when contested elections may be heard and when notice thereof is to be served is preferable to that provided by the legislature and I would be pleased to go along with the majority in this decision were it not for the provisions of Article Y, Section 1 of the constitution of this state which provides, in part, 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; The fixing of the time for the holding of elections and the manner in which recounts, contests, etc., are to be determined, fall wholly within the prerogative power of the legislative branch of the government of this state. With regard to the pertinent question our legislature has spoken clearly and unambiguously. Code, 3-7-7, as amended, provides in part: “. . . The notice of contest shall be presented to the county court at its first term after the same is delivered to the person whose election is contested, and the same shall be docketed for trial in such *74court. ...” (Italics supplied.) The phrase, “its first term after” in that section is clear and unambiguous and this Court has no authority under the constitution of this state to interpret it, to construe it, to amend it, or to rewrite it, and in so doing has clearly violated the basic law of this jurisdiction. Even if there had been an ambiguity in this language, this Court could not change what appears to he the obvious meaning without overruling several of its former decisions wherein this language has been construed and found to mean exactly what it says.
In Stafford v. County Court, 58 W.Va. 88, 51 S.E. 2, this Court held that the pertinent language of the statute meant the next regular term after the notice of contest was served and not a special term which might be held prior thereto. It is my opinion that Brawley v. County Court, 117 W.Va. 697, 188 S.E. 139, is directly in point and that case comes from the same county as the instant ones. Briefly, the facts in that case are these: Brawley and Slack were candidates for the democratic nomination for Sheriff of Kanawha County in the 1936 primary election and, following a recount, Brawley served Slack with a notice of contest on July 22, 1936, which notice stated that the contest would be presented to the county court on August 1, 1936. Then and now the regular terms of the Kanawha County Court began on January 2, April 1, July 1, and October 1. On August 1, Brawley appeared before the county court and moved that the contest be docketed. On August 4, it was refused, the county court stating that the notice could not be docketed until the next regular term of that court which began on October 1, as heretofore stated. Brawley sought a writ of mandamus in this Court directing the county court to accept his notice of contest and docket it for the August session. The writ was awarded but the opinion makes it clear that the county court of Kanawha County was required to accept the notice and hear the case at the August session because at that time the statute pro*75vided for a regular county court “session” beginning on August 1 of each year and that “session” and “term” were synonymous and inasmuch as there was a regular August session provided by law that the contest cotdd be docketed and heard at that session, regardless of the terms fixed by the court itself. However, it is clear from the opinion that this Court interpreted the pertinent statutory language to mean the next regular term and not the same or instant term of a county court. In commenting thereon the Court said: “ ‘The notice of contest shall be presented to the county court at its first term after the same is delivered to the person whose election (nomination) is contested and the same shall be docketed for trial; ’ that the statutory phrase, ‘the first term after,’ has been held in Stafford v. County Court, 58 W.Va. 88, 51 S.E. 2, to imply the first regular term after; . . . .” Dryden v. Swinburn, 15 W.Va. 234, cited by the majority in its opinion is inapplicable since controlling language now contained in Code, 3-7-7, as amended, was not contained in the statute when that case was decided and is therefore not in point.
It is true, as stated in the majority opinion, in quoting from many decisions of this Court, that election results should be determined and declared with dispatch, but none of those cases holds that the constitution of this State should be violated by this Court in order to achieve that purpose. The Court, in its opinion, very clearly states that the controlling question in these cases is whether Code, 3-7-7, as amended, means that the contestants must wait until the next regular term of the county court after they have been served with notices by the contestees or whether such contests may be docketed and heard at a session during which the notices are served and the county court is requested to docket the cases for hearing. The legislature has answered that question in clear and succinct language. This Court has done likewise in its previous decisions. It is my opinion that if the majority sees fit to rewrite the statute and depart from its former decisions then, *76at least, it should have overruled such former decisions and said so both in the syllabus and the body of the opinion. We are thus placed in the position again of having two lines of decisions upon a question and I do not think that that is fair to the courts of this state that are bound by the precedents established by this Court.
I would deny the writs of mandamus as requested in the petitions.