dissenting:
Respectfully I dissent.
I disagreed earnestly with the Court’s decision embodied in its decision order, not so much because of any question decided but rather because of a question which was not met squarely, the decision of which, I believed, would have required a contrary result. In these circumstances and at my request, the decision order reserved to me the right “to file a dissenting-opinion.” My dissenting opinion, thus authorized by the Court’s order, was filed and marked “filed” in the office of the Clerk on April 6, 1967. Pursuant to the customary practice, copies of the decision order and of my dissenting opinion were sent to counsel of record in this case.
Having read the Court’s opinion, filed almost three months after the case was decided and the decision announced, I believe it embodies a quite labored effort to justify the Court’s decision in the light of my dissent. For the first time, there has been brought to *689ruy attention by tbe Court’s opinion tbe proposition, procedural and not jurisdictional, now belatedly raised sua sponte by tbe Court, tbat mandamus is not a proper proceeding by wbicb to test tbe relator’s eligibility to bold public office in tbe light of tbe clear language of Article VI, Section 14 of tbe Constitution of West Virginia. Tbe Court considered tbe question of eligibility in its initial decision and summarily disposed of it on tbe following ground clearly stated in tbe decision order: “* * * tbat Article VI, Section 14, of tbe Constitution of tbis State and tbe case of Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757, 70 S. E. 2d 477, are not applicable on tbe facts to tbe instant case; * *
It was Alvis Porter, tbe relator, wbo invoked tbe original jurisdiction of tbis Court and recognized mandamus as an appropriate remedy by wbicb to require bis induction into office, asserting, as be was required to do in mandamus, tbat be bad a clear legal right to tbe judicial relief be sought. I am quite willing to assume that tbe able and distinguished attorney wbo instituted this mandamus proceeding in behalf of Alvis Porter would not have been disposed to assume tbe awkward position of asserting before tbis Court tbat mandamus was not a proper proceeding in wbicb an adjudication of all elements of a clear legal right of Alvis Porter to be inducted into tbe public office. In any event, tbat position was not taken by counsel.
On tbe procedural question so tardily raised and so laboriously asserted, I believe Patten v. Miller, 190 Ga. 123, 8 S. E. 2d 757, particularly at pages 774 and 775, is pertinent. In addition to tbe foregoing, I adopt my dissent to tbe original decision as my dissent to tbe majority opinion. It is as follows:
In tbis mandamus proceeding instituted in tbis Court pursuant to its original jurisdication in such cases, Alvis Porter seeks to require tbe County Court of Logan County to admit him to office as a commissioner *690of that body and to compel W. E. Bivens to vacate that office. On April 4, 1967, this Court entered the following order embracing its decision of the case:
“This mandamus proceeding came on for decision this 4th day of April, 1967, upon the petition of Alvis Porter and the rale in mandamus issued upon such petition March 27, 1967, returnable before this Court March 31,1967; the demurrer and answer of the defendant W. E. Brewer; the demurrer of the petitioner to the answer of the defendant Brewer; and upon the briefs and oral arguments in behalf of the petitioner and the defendant Brewer and the brief in behalf of the defendants W. E. Bivens and William C. Dingess, as commissioners of the County Court of Logan County.
“Upon consideration of all of which it appears to the Court and this Court doth find, upon the authority of the decisions of this Court in Hertzog v. Fox, Mayor, etc., 141 W. Va. 849, 93 S. E. 2d 239; Stowers v. Blackburn, 141 W. Va. 328, 90 S. E. 2d 277; State ex rel. Rogers v. Board of Education of Lewis County, 125 W. Va. 579, 25 S. E. 2d 537; State ex rel. Thomas v. Wysong, 125 W. Va. 369, 24 S. E. 2d 463; and other cases cited in the opinion in the Hertsog case, that mandamus is the proper remedy to admit or restore to office a person who shows a clear legal right to an office and is wrongfully excluded from it; and this Court further finds that at the general election held in Logan County on November 8,1966, petitioner was the candidate on the Democratic ticket for the office of county commissioner of Logan County, that the returns of that election have been canvassed, the result ascertained and declared, a certificate of election results showing petitioner to have received a majority of the vote cast has been issued to petitioner, he has taken the proper oath and has tendered a proper bond with approved sureties; that Article VI, Section 14, of the Constitution of this State and the case of Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757, 70 S. E. *6912d 477, are not applicable on tbe facts to the instant case; and, upon the authority of the decisions of this Court in State ex rel. Looney v. Carpenter, 106 W. Va. 170, 145 S. E. 184; State ex rel. Hall v. County Court, 87 W. Va. 437, 105 S. E. 693; Griffith v. County Court, 80 W. Va. 410, 92 S. E. 676; Trunick v. Town of Northview, 80 W. Va. 9, 91 S. E. 1081; and Kline v. McKelvey, 57 W. Va. 29, 49 S. E. 896, petitioner, notwithstanding the pending election contest, is prima facie entitled to the office of county commissioner of Logan County.
“It is, therefore, considered and ordered by the Court that a writ of mandamus do issue against the defendants, W. E. Bivens and William C. Dingess, as commissioners of the County Court of Logan County, and the County Court of Logan County, commanding them to admit petitioner to the office of county commissioner of Logan County and commanding the defendant W. E. Bivens to forthwith vacate the office of county commissioner of Logan County and surrender the same to the petitioner.
“All of which is accordingly considered and ordered.
“Judge Calhoun dissents, would refuse to award the writ of mandamus, and reserves the right to file a dissenting opinion.”
The basis of my dissent is that the Court in its decision did not decide one of the questions directly presented for decision by the demurrer to the answer; that the question thus presented was the one urged with the most assurance in behalf of the respondents; and that a proper decision of that question would have required the Court to reach a result directly contrary to that reached in this case.
Alvis Porter was the candidate of the Democratic Party and W. E. Brewer was the candidate of the Bepublican Party, in the General Election held on November 8, 1966, for election to a six-year term, *692commencing January 1, 1967, as commissioner of tlie County Court of Logan County. At the time this proceeding was instituted, W. E. Bivens was holding over in that office in the absence of an election and qualification of his successor.
“A demurrer to an answer in a proceeding in mandamus admits the truth of all facts which are well pleaded in the answer.” Wilson v. The County Court of Logan County, 150 W. Va. 544, pt. 2 syl., 148 S. E. 2d 353. We are not, therefore, confronted with a dispute of facts. The answer and the demurrer thereto specifically and directly raise the question whether Alvis Porter is eligible to hold the office of commissioner of the county court by reason of the provisions of Article VI, Section 14, of the Constitution of West Virginia which, so far as pertinent to this case, are as follows: “* * * No person who may have collected or been entrusted with public money, whether State, county, township, district, or other municipal organization, shall be eligible to the legislature, or to any office of honor, trust or profit in this State, until he shall have duly accounted for and paid over such money according to law.” The Court’s decision order, without any elaboration, explanation or particularization whatever, summarily dismisses and avoids decision of that question by stating that the constitutional provisions quoted immediately above “ * * * are not applicable on the facts to the instant case; * * I am unable to perceive any sound basis for that statement.
Five prior decisions of this Court are cited in the decision order for the principle that mandamus is a proper proceeding to require that one be admitted to an office he is entitled to hold. “Where a person nominated to office is required by law to possess certain qualification at the time of this election, mandamus will lie to determine the qualification.” Adams v. Londeree, 139 W. Va. 748, pt. 2 syl., 83 S. E. 2d 127. Where a statute requires that a candidate shall have a *693specified qualification at the time of his nomination, the question of his qualification or disqualification may he determined in a mandamus proceeding. State ex rel. Brewer v. Wilson, 151 W. Va. 113, 150 S. E. 2d 592. In the present case, it is not questioned that Alvis Porter’s qualification or disqualification to take office as a county court commissioner may he determined in this mandamus proceeding. Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757, emphasizes the imperative nature of the disqualification created by the constitutional provisions here in question.
The answer alleges that Alvis Porter “was and is guilty of frequent and repeated violations of the provisions of Article YI, Section 14 of the Constitution of West Virginia,” and that he collected “public moneys before January 1,1967, the date of the beginning of the term of the office which he seeks in this proceeding, and having failed to account for or pay over said public moneys before January 1, 1967, or since that date, and the said Alvis Porter having failed to account for or pay over said public moneys up to the time of the filing of this Answer as reflected by an audit made of the appropriate books and records of Logan County by an auditor from the office of the West Virginia State Tax Commissioner pursuant to an order of the County Court of Logan County entered on March 8,1967,***.”
The answer also alleges that, by an order entered in a proceeding in the Circuit Court of Logan County, in which Alvis Porter was removed from his office of constable, the matters alleged above concerning his failure to account for public money were “judicially determined by a final order * * *.” A certified copy of the order of the circuit court, dated March 3, 1967, was filed with and made a part of the answer. The order discloses that it was entered in a removal proceeding instituted pursuant to Code, 1931, 6-6-7. The order recites that Alvis Porter appeared in person and by counsel in the proceeding in the circuit court and *694that the “defendant by his counsel advised the Court that he did not resist the prayer of said amended petition praying that he be removed from office and did not desire to offer any evidence in opposition to the allegations of said petition * * * and the Court proceeded to hear the evidence offered in support of the allegations of said amended petition.” The order recites some of the court’s findings which formed the basis of Alvis Porter’s removal from office as follows : “And it appearing to the Court and the Court doth find from said evidence that the defendant during his present term of office as Constable * * * has wilfully, flagrantly and repeatedly charged for, received and failed to account for and pay over according to law public money to which he was not and is not entitled for services not in fact performed by him, and the Court doth further find from all the evidence that the defendant still has not accounted for and paid over such public money according to law, and that such wilful, flagrant and repeated violations of the law by the defendant have been committed over a long period of time and throughout his present term of office as Constable in and for Logan District, Logan County, West Yirginia, which began January 1, 1965.” The circuit court further found and held that Alvis Porter “has been and is guilty of official misconduct, malfeasance in office, incompetence and neglect of duty * * The testimony which formed the basis of the circuit court’s findings of fact was not controverted by Alvis Porter at his removal trial. The allegations of the answer in this mandamus proceeding are not denied or controverted by any sort of pleading, but, on the contrary, the demurrer, for the purpose of the question here presented, admits the truth of all such allegations.
The demurrer to the answer contains the following two points, the only points bearing directly on the question here being discussed:
“3. The order of the Circuit Court of Logan County ousting petitioner from the office of con*695stable is not res judicata on the issne of petitioner’s alleged disqualification to bold the office of County Commissioner since that question was not before the Circuit Court in the ouster proceeding, and could not, therefore, have been decided therein.
“4. There has been no judicial finding, in the ouster proceeding or otherwise, that petitioner has violated West Virginia Constitution, Article VI, Section 14.”
Assuming that the judgment of the Circuit Court of Logan County is not res judicata on the issue of the alleged disqualification to hold office and that there was no “judicial finding” in the ouster proceeding that Alvis Porter has violated West Virginia Constitution, Article VI, Section 14, such alleged facts have no per-tinency to the question directly presented to the Court for decision in this proceeding. This case is not before this Court on appeal from the Circuit Court of Logan County. This case is before this Court in the exercise of its original jurisdiction. It is a proper proceeding in which to have a judicial determination of Alvis Porter’s qualification or disqualification to hold the office of county court commissioner, irrespective of the nature of, or even a complete absence of, prior proceedings in any other court.
Alvis Porter is the one who has invoked the original jurisdiction of this Court by asking that the county court be required to admit him to the office he seeks. His eligibility to hold the office of county court commissioner has been challenged by a proper pleading-containing clear and extensive allegations which, if established, imperatively render him ineligible to hold the office he seeks. These allegations go unchallenged and, additionally, their truth is admitted, for the purpose of this case, by the demurrer to the answer.
The majority opinion cites five prior decisions for the principle that the pendency of an election contest is no impediment to the right of one to be inducted *696into office “ * * * if, upon the face of the returns duly canvassed, the hoard of canvassers ascertains the result to he favorable to him, and so declares upon its record, and issues to him the required certificate, and he otherwise complies with all preliminary legal requirements.” State ex rel. Hall v. County Court of Gilmer County, 87 W. Va. 437, pt. 1 syl., 105 S. E. 693. These cases afford no semblance of an answer to the constitutional question here involved. The procedure before the Court in this case would be wholly appropriate to determine Alvis Porter’s eligibility even if no election contest were pending or impending.
If, in this case, the Court had faced and decided the question of eligibility which has been properly and so squarely presented for decision, it is quite obvious that the Court would have been required to make an adjudication of Alvis Porter’s ineligibility. So far as he is concerned personally, there would have been no reason for pursuing the election contest further. Some court somewhere along the line will be called upon to decide the vital question which this Court has so casually sidestepped in this case.