dissenting:
I respectfully dissent from the action of the majority in awarding a writ of mandamus on September 15, 1972, since I believe such action was premature.
Relators agree that the respondents, The County Court of Mingo County, had until September 21, 1972, to complete the hearing of the contested election and enter an order declaring the true results thereof. This critical date is six days subsequent to the issuance of the writ of mandamus on September 15,1972.
It further appears that relators sought and heretofore obtained a writ of mandamus in the Circuit Court of Mingo County concerning this election contest; and that the agreed order in such proceeding, among other provisions, concluded as follows: “such sessions to *177continue . . . until said election contest shall be concluded in accordance with law and within the time prescribed by law.”
This Court has held on numerous occasions that to be entitled to a writ of mandamus there must be a clear legal right, a clear legal duty and lack of other clear adequate legal remedy.
As to the clear legal right of relators to relief by mandamus on September 15, 1972, I do not believe that relators have satisfied this requirement. As heretofore stated, the final date for the County Court to act, namely, September 21, had not yet arrived. Are we to presume that public officials will not perform the duties required of them? I think not. Are we to anticipate that actions not yet required to be performed will not be done as required? I think not.
Certainly the provisions of Section 7, Article 7, Chapter 3, Code of West Virginia, 1931, as amended, impose a clear duty on the County Court to complete the contest timely. I feel that this covers the clear legal duty requirement for a writ of mandamus, but the time for performance did not expire until September 21, 1972.
Relators have clearly shown that they did have another clear adequate legal remedy of which they took advantage. Relators obtained a writ of mandamus in the Circuit Court of Mingo County prior to the time relators applied to this Court, and the writ so awarded by the Circuit Court ordered that the election contest be concluded in accordance with law and within the time ■prescribed by law.
The writ issued by this Court is merely repetitious of the prior writ of mandamus issued by the Circuit Court and only substitutes the date, “September 21, 1972,” in lieu of the words “and within the fime prescribed by law.”
The majority may have been influenced in their decision to award the writ on September 15, by a prior holding of *178this Court in State ex rel. Hager v. Oakley, 154 W.Va. 528, 177 S.E.2d 585 (1970), which in my view had the effect of denying any authority of this Court to require the County Court to enter an order, after the statutory time for the County Court to act in an election contest had passed, where the County Court failed to timely act as required by Section 7, Article 7, Chapter 3, above-cited.
I strongly disagree with the holding in State ex rel. Hager v. Oakley, supra, insofar as it holds or intimates that this Court lacked authority to require the County Court to enter a proper order after the three months would have expired.
I am appalled to think that this Court, the highest state court of West Virginia, feels it is prevented from acting to require a public body or official to act or perform a statutory duty merely because that public body or official failed, neglected, or refused to act within the time required. Such a holding by this Court would allow public officials to flaunt their statutory duties by mere inaction or neglect.
For the foregoing reasons, I would have denied the writ on September 15, 1972.