(dissenting) :
I can not agree to the majority opinion for the following reasons, viz: ,
(1) I do not think this Court has original jurisdiction of the ease. It is an original application to this Court for mandamus to review the action of the circuit clerk in appointing F. G-. Musgrave as republican ballot commissioner in the county of Mason, and to reverse his action and compel him to appoint petitioner in his stead. There were two executive committees of the republican party in said count)', each claiming to be the regular one. The chairman of each of said executive committees made nominations for ballot commissioner.- The one designated by the chairman of the regular committee only could be appointed. It, therefore, became necessary for the clerk to investigate the facts, and ascertain which committee was regular, and to appoint the person named by him, if he was otherwise qualified. The nature of the case presented a judicial, not a ministerial, question; it required the elgrk to malee an examination of the facts, and to apply the law to them. In the language of BRANNON, Judge, in the Marcum Case, 42 W. Ya., at page 266: “This was then a judicial question, called quasi judicial when the matter is before an officer or a tribunal, not a court; and such a question can not be made the basis of a mandamus at common law.” This, I think, is absolutely sound. The clerk in the present case had a question to decide similar to the one to be decided by the ballot commissioners in that case. Now, if such a question could not be reviewed on mandamus at the common law, I do not think the legislature can confer original jurisdiction on this Court to review it, by an enlargement of the writ. I do not deny the power to the legislature to modify, ox even take away a remedy, provided that such modification or substitution of remedies does not interfere with vested rights. But I do not think the legislature has the power to so enlarge the scope of a writ *690as to make it embrace matters over which, this Court did not hare original jurisdiction at the time of the adoption of the constitution, and thereby, indirectly, extend the original jurisdiction of this Court over matters not granted to it by the constitution. Neither do I deny the power of the legislature to regulate the jurisdictions of courts, when not forbidden to do so by the constitution. It is admitted that the question which we are asked to review by mandamus could not have been reviewed upon such writ prior to the enactment of section 89 of chapter 3 of the Code, either by this Court, or by a circuit court. Now, section 3, Article VIII of the Constitution, gives this Court original jurisdiction only in cases of habeas corpus, mandamus, and prohibition. The original jurisdiction in mandamus, then, must be taken to mean jurisdiction of such matters only as were comprehended by the use of the writ as defined by the common law. If it be true that the legislature has power to confer original jurisdiction on this Court in this case, by enlargement of the writ of mandamus, as held in the majority opinion, it would necessarily follow that it has power to confer original jurisdiction in almost any case, simply by enlarging the scope of writs and remedies.
So far as I know, this is the first time this Court has had its attention called to the constitutional right of the legislature to thus enlarge the original jurisdiction of this Court. Nearly all of the mandamus cases, involving questions pertaining to the election laws, have been brought here on writs of error to the circuit courts, and the question of original jurisdiction in this Court has never before been so much as mooted in the opinions in any of the decided cases; and hence, I regard it as an entirely open question.
(2) But I do not believe section 89 of chapter 3 of the Code was intended to confer jurisdiction on this Court, or on the circuit courts, to review, by mandamus, such a question as the petition in this case presents. I think the legislature intends that the writ shall embrace only such matters as are ministerial, and such as were comprehended by the writ at the common law: the statute is only declaratory of the common law. If the legislature intended to substitute mandamus for cer-tiorari, because it is a more expedient remedy, why then did it retain the latter writ? There can be no reason for retaining *691certiorari in election cases, if mandamus is intended to take its place.
Another potent reason supporting the view that the legislature did not intend mandamus to be used to control judicial, or quasi judicial action, is, that conflicting rights are always involved when such questions are to be decided, and the writ of manda/mus, being a peremptory writ to compel the performance of an unquestionable legal duty, is addressed to the officer whose duty it is to perform the act, and by such writ the claimant of the right, or benefit to be derived by the act to be performed, is given no opportunity to be heard. The rights of parties would thus be determined without a hearing. The legislature, in my opinion, simply intended that mandamus should be used, in election matters, to compel election officers to perform purely ministerial duties, just as the writ was used at the common law to compel performance of ministerial duties in other matters, and that if the duty to be performed involved quasi judicial action, then certiorari, and not mandamus was to be the remedy. We have many statutes that are simply declaratory of the common law rules and principles. I do not think we can get around the question by saying that the circuit clerk is a ministerial officer; that all his acts are, therefore, necessarily ministerial; that he must determine all judicial questions right; and that, if he does not do so, his action can be reviewed by mandamus. Whether the question to be decided by’ the clerk is purely a preliminary question pertaining to his ministerial dutjq or is a quasi judicial question depends upon the very nature of the question to be decided, and not upon the' fact that the officer who decides it is a ministerial officer. This Court can no more convert a quasi judicial act into a ministerial one, by deciding that all the acts of a ministerial officer are ministerial acts, than it can change a law of nature. The quality of the act depends upon its nature, and not upon the official character of the officer.
This Court held, in the Marcum Case, that mandamus would not lie “to control or reverse the action of a court, board, or other inferior tribunal, or of an officer, where such action is one of discretion, judicial or quasi judicial.” And, as I interpret the opinion in that case, it holds that the action of the ballot commissioners in determining that Harvey’s and not *692Marcum’s name should go on the ballot, was a quasi judicial question. Now, if there is any distinction to be made between the action of the ballot commissioners in that case, and the action of the circuit clerk in the present case in deciding which is the regular one of two factional political committees, I confess that my mind1 is not able to grasp it. The question presented to the clerk is not one which the law contemplated that he would ever be required to decide, yet one which the discharge of his duty compelled him to decide. It is, therefore, a question collateral to, and not preliminary to the performance of his ministerial duty. It is a question which he was bound to determine judicially, preparatory to the performance of his purely ministerial duty. The question presented to him arose out of conditions which the election statute seems not to have contemplated would ever exist, and in respect to which the statute has made no provision. There is nothing in the statute to guide the clerk as to how he should determine such a question, and his decision of it is not one of his ministerial duties, within the meaning of the statute. Therefore, his decision of this collateral, judicial question, was never intended by the legislature to be reviewed by writ of mandamus from this or any other court. According to my understanding of the law as announced by this Court in both the Marcum Case, 42 W. Va., and later in the Dent Case, 45 W. Va. 750, the clerk’s decision in this matter can not be reviewed in this manner.
(3) But suppose I am wrong in any view concerning the power to review the judicial act of a ministerial officer on the writ of mandamus, still I am unable to agree with the majority in regard to the merits of the controversy. If the matter is one which merits the consideration of this Court then I know of no other way to decide it than upon an investigation of the facts, and an application thereto of the established rules and ¡oaúnciples governing courts of justice. Must we say that because the state committee, and committees appointed by congressional and senatorial conventions have decided the question, that their decision is final, and binding on this Court, and that we are thereby precluded from going behind them, to look into the merits of the ease? Are we precluded by their judgments from looking to the facts, even though we may clear*693ly see that tlieir .judgments are wrong? If such is the law then this Court finds itself in a position where, in many cases, if not in this one, it is bound by the action of a political committee, composed of men who are unsworn and, perchance, .of men whose better judgment is blinded by partiality or favoritism, to lend its power to give validity to an act of injustice. I know of no rule, or custom, prevailing in any political party in this state which recognizes the powei' in a state committee, or any other committee, to determine the rights of conflicting county committees. Indeed, the answer in this case denies such power, right or custom in such committee, and none such is proven. I do not think the decision by the state committee, of the question involved, is entitled to as much consideration in this Court as the decision by1 the clerk himself. He is a sworn officer whose duty it is under the law to decide the question. The committee is not constituted by law a tribunal to decide such matters, and its members are not sworn. Furthermore, there is no evidence that the question was voluntarily submitted to the state committee for arbitration, under an agreement to abide by its decision. Consequently, the appearance of both parties before that committee for the purpose of contesting their rights should not affect the merits. The following cases hold that the decision of a state executive committee of a political party is not binding on a court in determining the regularity of local political conventions: In re Broat, 27 N. Y. Sup. 176; In re Heacock, 41 N. Y. Sup. 161.
It appears that the custom with the republicans of Mason county has been to elect, either in convention, or by primary election a county central committee composed of ten members, one from each magisterial district. This committee then appoints a county executive committee composed of five, or' .seven members, whose duty and right it is to manage the political campaigns. Each committee is selected for a period of 'two years, both dérive their power from the republican party of Mason count}', one directly, and the other indirectly. Now, there is no question but that the old executive committee was the duly appointed and regular one. If it was lawfully deposed by the central committee, it necessarily follows that the new committee is the regular one, but if not lawfully *694deposed, then the committee selected under the call for a primary election issued by the old executive committee, and held on the 6th day of August, 1910, is now the regularly constituted central committee, and the executive committee selected by it, of which B. E. Mitchell is the chairman, is the regularly constituted executive committee, and said Mitchell would have the right to designate the republican member of the ballot commission. We do not have to depart from the pleadings to ascertain the facts. They do not depend upon the question of the regularity of contending factions of a primary election, or mass conventions, as in the Marcum Case, and as also in the cases cited in the majority opinion rrom New York, Kentucky and North Dakota. But the question, which is the regular one of the two contending factions, in the present case can be determined from the pleadings alone. The alternative writ sets forth how, and why the old central committee attempted to depose the old executive committee. If the attempted deposition was without authority, it -follows that everything done thereafter by the substituted executive committee was irregular. There is no question that the old executive committee was constituted according to the political custom prevailing in the republican party of Mason county for many years. The old central committee had appointed it; and it is fully proven that such executive committee had, previously, exercised the right and power to conduct the political affairs of the party -for two years, and until after the next succeeding county convention, or primary election. I do not believe, from the evidence in the case, that the 'central committee had the right, or the power, to depose, at its pleasure, the executive committee, and to substitute another in its place. According to the rules of law governing in cases where an officer is appointed to serve for a definite period of time, no such arbitrary power was vested in the central' committee. Helmick v. County Court, 65 W. Va. 231. But let it be assumed that it did have this power, it can still be said that it never exercised it. It is true that some of the members of the county central committee assumed to act for the committee; less than a quorum of such committee met and went through the form of deposing the old executive committee, and attempted to put a new one in its place. But their act in this regard was void. *695It is a well established parliamentary rule, that it requires a majority of the whole number of the members of any board, or committee in order to constitute a quorum for the transaction of business, unless authority be given to a less number by the body constituting it. 29 Cyc. 1688; United States v. Ballin, 144 U. S. 1; Heiskell v. The Mayor, etc., 65 Md. 125; Ex parte Willcocks, 7 Cow. (N. Y.) 402 (17 Am. Dec. 525); Commonwealth ex rel. Clark v. Read, 2 Ashm. (Pa.) 261; Cotton Mills v. Commissioners of Cleveland County, 108 N. C. 678; Stanford v. Ellington, 117 N. C. 158; Blacket v. Blizard, 17 E. C. L. 508; Spencer v. Maloney, 28 Col. 38.
The full membership of the county central committee was ten; and only five members of the old central committee were present when they assumed to depose the old executive committee. They first attempted to fill a vacancy in the central committee; but according to the law above cited they were powerless even to fill a vacancy. The new member was not a lawfully constituted committeeman, and all their proceedings were void. A quorum was just as much lacking after the pretended appointment of the new member, as before. So that, applying- the rules and principles of law regulating bodies of like nature, and I know of nothing else to apply in the decision of a matter, whether it relate to personal rights, property rights, or political rights, the entire proceeding by the old central committee was only a pretense, and was absolutely void, and conferred no authority on the new executive committee. It then follows, as a matter of course, that the old executive committee was the regular one, and that the central committee chosen at the primary election, held pursuant to its call, was the regularly constituted new republican central committee, and that H. E. Mitchell, the chairman of the new executive committee appointed by it, is now the regularly constituted chairman of the republican executive committee of Mason county. I do not think the political wrong attempted to be consummated by less than a quorum of the old central committee should be sustained in a court of justice on the ground that such action has been sanctioned by committees appointed by congressional and senatorial conventions, and by the state central committee. Two wrongs can not make a right, even though the right be only a political one. So that, instead of the rela*696tor’s showing himself entitled to the office which he seeks, if the position of ballot commissioner can properly be called an office, by a clear legal right thereto, as the authorities all hold he should do before the writ will lie, his own pleadings show that his claim is without legal foundation. Belying upon the law in general, governing the use of the writ of mandamus, and upon the decisions of this Court in the Marcum Case, 42 W. Va. 263, and the later Dent Case, 45 W. Va. 750, in particular, I would refuse the writ in this ease.