DISSENTING IN PART:
I concur in the holding that the Legislature had the power to prescribe, in the manner here adopted, the requirements for eligibility of candidates for the office of county superintendent of education for the year 1955. However, the issuance or denial of the writ of quo warranto to eject one from office is addressed to the sound discretion of the court and, in my opinion, the writ under consideration should be denied. I think that the proceedings, under the circumstances in this case, are unjust to Land and serve no good purpose from the standpoint of the public.
The rule seems now universal that the issuance or refusal of the writ is addressed to the sound discretion of *568the court. In 44 Am. Jur., page 96, Section 15, the rule is stated in this language: “Although originally the writ of quo warranto was a writ of right, it is in modern times, and generally speaking, not of that character, hut issues in the sound discretion of the court, even where the state is seeking the writ, and this discretion in regard to the proceeding is in some states recognized by statute. This is rightly so, for the writ, or a judgment of ouster thereunder, is one which may have drastic consequences affecting the public welfare. In exercising such discretion, the court may and should consider all the circumstances in the case, including lapse of time and circumstances which would establish laches, acquiescence, or estoppel, and whether the public interest will be served, for the court may refuse the writ or judgment of ouster upon considerations of public policy, interest, or convenience. Where, in quo warranto to test the right of a city to exercise jurisdiction over certain territory, a judgment of ouster would cause confusion or disaster in the administration of the affairs of the city, and it does not appear that its refusal would be detrimental to the public interests or prejudicial to the constitutional rights of the citizens, duly claimed and asserted, the court has the power to refuse judgment of ouster. ’ ’
In State, ex. rel., Jordan v. Mayor and Commissioners of City of Greenwood, 157 Miss. 836, 127 So. 704, on the suggestion of error reported in 129 So. 682, this Court said: “Although the opinion heretofore delivered in this case did riot in express words so say, it carries the implication, as fully as if said, that we intended to hold and did hold that we would exercise the discretion to consider all the circumstances of a case, in quo warranto, and if on a full view of these circumstances it appeared clear that the public welfare not only would not be promoted, but the reverse would be the result, and that by reason of the lapse of time harm rather than good would *569result to the public interest, we would decline to interfere in a proceeding in quo warranto designed to ‘ disturb the peace and quiet’ of any public or quasi public corporation, and that the doctrine of laches would be applied in such cases, although not ordinarily applicable in proceedings by the state. In other words, in such a proceeding we would not consent that the principle that no lapse of time runs against the state, a doctrine established to promote the interests of the state and to save it from harm, shall be reversed in its purpose and be so used as to harm the state and the general welfare. The language has often been used in this court that that which is designed as a shield shall not be permitted to be turned into a sword.”
These are the facts and events which brought about the present situation: Land was a school man. The general election was coming up in 1955. In the latter part of 1954 many of the voters solicited Land to make the race for County Superintendent of Education of Kemper County. Land held a certificate of eligibility for that office dated March 3, 1951. Some changes had been made in the law. There was some question whether Land was then eligible for the office under the strict requirements of the State Department of Education as the Department might interpret them. Land sought the advice of his friend I. M. Latimer, who was Superintendent of Education of Neshoba County. They decided to write the Attorney General of the State of Mississippi. Mr. Latimer did that under date of December 9, 1954. The Attorney General replied on January 4, 1955. Latimer and Land interpreted the reply, whether rightfully or wrongfully, to mean that Land was eligible as a candidate.
Land then requested a Class A Certificate for Administrators be issued to him by the State Department of Education, giving that department his scholastic and educational qualifications. He was advised by that depart*570ment that it did not consider him entitled to a Class A Certificate. The grounds for refusing this certificate are somewhat confusing because the agreed statement of facts in this case recites that “the State Department of Education of the State of Mississippi has no rules or regulations which define a Class A certificate for administrators, and has no rules or regulations covering certification of instrumental personnel.” It may be pertinent to here state that Land had had three years actual experience in the administrative postition in the public schools of Mississippi as a high school principal and five years experience as a teacher in the On-the-Farm Veterans’ School in Kemper County under the direction of the State Board of Education. He was a graduate of Mississippi State College, had a BA degree from that institution, had eight semester hours of credit in the School of Education at Mississippi Southern College and, as stated, had a certificate of eligibility dated March 3, 1951.
Land then, in order to be sure of his eligibility, instituted a proceeding in the Chancery Court of Kemper County against the members of the Kemper County Democratic Executive Committee to determine whether his name should be placed upon the ballot as a candidate for County Superintendent of Education. This matter was heard at the county courthouse on May 19, 1955, before a large gathering of the citizens of Kemper County. On that date the chancellor held that Section 9, Chapter 10, Acts of Ex. Sess. of 1953, purporting to define the eligibility of those occupying the office of county superintendent of education, to be unconstitutional, and further held that Land had the qualifications for that office and ordered the Executive Committee to have Land’s name printed on the ballots used in the primary election. A certified copy of the decree was delivered to the executive committee and Land’s name was printed on the ballot for *571the primary election to be held August 2, 1955. There was no appeal from this decree.
It appears that there were three candidates for the office and Land received a majority of all of the votes cast and was nominated as the Democratic candidate at said first primary. The County Election Commissioners placed Land’s name upon the ballot for the general election to be held in November 1955, and the agreed stipulation between counsel, says he “was elected to said office by an overwhelming majority” of the votes cast in the said general election. Land was issued a commission as Superintendent of Education of Kemper County by the Secretary of State and the Governor of Mississippi, as provided by law.
He executed bond, took the oath of office, and entered upon his duties the Second Monday in January 1956.
Some four and one-half months thereafter the present quo warranto petition was filed.
The agreed stipulation of counsel recites that “in order to accept said office of County Superintendent of Education of said Kemper County and enter into, occupy and discharge the duties thereof, Respondent necessarily gave up his work and avocation and profession of teaching and superintending public schools in said Kemper County by means of which he customarily earned a livelihood.” The agreed stipulation further recites that “An appreciable number of persons who did not hold and were ineligible to obtain the Class A Certificate for administrators therein mentioned, became candidates for the office of County Superintendent of Education in the general election held in November, 1955, and were elected to said office, and were issued commissions to hold said office, and now (June 8,1956) occupy and hold said office in the same manner as your Respondent.”
It will be noted too in this connection that Chapter 10 of the Ex. Sess. of the Legislature of 1953, changing the eligibility requirements of candidates for the office of *572county superintendents of education, exempted from the requirements those in office on the effective date of the passage of the act, to wit, December 28, 1953. This, in effect, exempted from the eligibility requirements eighty-two prospective candidates. This at least indicates that the possession of the requirements which the State Department of Education might impose were not absolutely essential to the qualifications of candidates for said office.
It is clear to me that it would be unfair and unjust to now eject Land from the office.
Nor is it perceived just how the public interest would be served by the ejection of Land. In the first place no one else is claiming a right to the office. This is not a contest between two people claiming the right of occupancy of one office. No one is being deprived of his individual rights. If Land is put out there must be the expense and trouble of another election. Nowhere in this record is it claimed that Land is not, as a matter of fact, well qualified to fill the office or that he has not done so in a most satisfactory manner. For ought that is shown here, he is as good a county superintendent of education as the State affords. Indeed, his qualifications above set out would seem without question to qualify him in fact to be county superintendent of education. Another, taking Land’s place, might be far less efficient than is Land. Land may, or may not, be eligible when the ultimate time arrives for selection of his successor. That can only be determined by the facts and circumstances, including the rules and legislative enactments, which may exist at the time. Any attempt to adjudicate that question now would be pure dicta. The question is not before us. But he may sincerely and honestly think he is qualified and make the race and receive the greater number of votes, thus bringing about the anomalous situation of an ejected man being re-elected to the office from which he was ejected. But this only adds to the public *573confusion. Apparently, since his unexpired term is to run longer than six months, his successor will he appointed hy the board of supervisors to serve until succeeded by one elected at a special election, who, upon certificate by the board of supervisors, will be commissioned by the Governor. Section 3293, Yol. 3, Miss. Code 1942 Recompiled. Again, Land has drawn his compensation as county superintendent of education. Is suit to be instituted in an effort to recover what he has been paid? It is disclosed in this proceeding that there are some eight other county superintendents in the State in substantially the same situation as is Land. Are eight other quo warranto proceedings to be instituted to eject these eight from office? If they are ejected, then the question of recovery from them of the money they have received naturally arises, as well as the matter of the expense and inconvenience of eight special elections, with the incidental disruptions of the educational systems in nine counties of the State. There will be involved also the question of the appointment of nine county superintendents of education to act from the time of ejection of the present occupants to date of induction into office of the newly elected officers. It seems to me that nothing can come from sustaining this quo warranto proceeding except private injustice to Land and confusion and expense to the public. If the people want a change they can make it at the next primary.
In my view fairness and sound discretion call for denial of this writ. More harm than good will result from its issuance. There will be confusion confounded.
Chief Justice McGehee, who presented this case to the conference en banc in the first instance, and who is now absent because of illness, has requested me to say that he joins in this dissent, and that he also thinks that the provisio in Section 9, Chapter 10, Laws of the Ex. Sess. 1953, is inseparable from the remainder of the section, so as to render the same unconstitutional as a classifi*574cation of candidates for County Superintendent of Education, there being no difference between the experience possessed by incumbents of the office on the effective date of the Act and former incumbents.
September 23, 1957 96 So. 2d 828 McGehee, G. J., joins in this dissent.ON SUGGESTION OF ERROR
Hall, J.Chief Justice McGehee and Associate Justice Roberds adhere to the views expressed by them in the dissenting opinion written by Judge Roberds when this case was originally decided by this Court. They, therefore, are of the opinion the suggestion of error should be sustained.
The other members of the Court are of the opinion the suggestion of error is not well taken, which necessarily results in its being overruled.
Suggestion of error overruled.
Lee, Kyle, Holmes, Arrington, Ethridge and Gillespie, JJ., concur. McGehee, C. J. and Roberds, J., dissenting.