dissenting:
Respectfully, I dissent. 1 agree with the Court’s decision that one need not be a lawyer in order to be eligible to hold a position as commissioner of accounts.
The majority opinion pinpoints the question presented for decision in this prohibition, proceeding as follows: “The sole issue, therefore, in this proceeding is whether or not a Commissioner of Accounts is engaged in the practice of law in the performance of his duties as such.” The circuit court had at least as much jurisdiction and power to proceed to a final decision of that question in the injunction proceeding as does this Court in the exercise of its original jurisdiction in this proceeding in prohibition. It is my position, therefore, that the motion of the respondents to dismiss this prohibition proceeding should have been sustained.
The prayer of the petition in this case is that the judge of the circuit court be prohibited “from proceeding further in said action and from continuing to exceed the said Court’s jurisdiction, * * I am unable to discern from the majority opinion upon what basis, or in what particular, the circuit court was proceeding without jurisdiction or in excess of its legitimate powers. The clear jurisdiction of the circuit court embraced the right to decide incorrectly as well as correctly.
The circuit court is a constitutional court of general jurisdiction having inherent equity powers. “Every judge of a circuit court shall have general jurisdiction in awarding injunctions, * * Code, 1931, 53-5-4. The sole purpose of the injunction proceeding in the circuit court was to determine whether it was necessary that Arle Thorn be authorized .to practice law in this state in order to be qualified to be lawfully appointed and to act as a commissioner of accounts.
The judge of the circuit court awarded a temporary injunction and proceeded diligently in his efforts to have a proper hearing and a decision of the case on its merits. It seems to me that the jurisdiction of the circuit court to *359entertain the injunction proceeding and to decide the case on its merits is made abundantly clear by the first point of the syllabus in the case of The West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420, which is as follows:
“A court of equity has jurisdiction to prevent by injunction the unlawful practice of law by a layman when such relief is sought by attorneys at law acting for themselves and other affected members of the legal profession or by a duly constituted and recognized bar association.”
State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741, was an original proceeding in mandamus instituted in this Court by a lawyer, who was a candidate for the office of prosecuting attorney, to compel the ballot commissioners to omit from the primary election ballot as a candidate for prosecuting attorney the name of another person on the ground that such other person was not a lawyer and therefore was not eligible to be elected to the office of prosecuting attorney. This Court awarded the writ in conformity with the prayer of the mandamus petition. This case is additional authority for the proposition that a circuit court, in an appropriate proceeding, may adjudicate the question whether one must be a lawyer in order to be eligible to hold a certain public office or position. In the body of the opinion in the Summerfield case, (148 W.Va. 535 at 538, 135 S.E.2d 741 at 744), the Court stated: “* * * Section 12, Article VIII of the constitution provides in part that the circuit court shall have jurisdiction ‘of all cases of habeas corpus, mandamus, quo warranto, and prohibition;’. Thus, it would appear that the circuit court of Fayette County and this Court have concurrent jurisdiction of a case such as this one.” (Italics supplied.)
The jurisdiction of the circuit court in the injunction proceeding has been recognized in the brief filed in behalf of the West Virginia State Bar as follows: “The sole jurisdictional question presented is whether a Circuit Court has jurisdiction to determine whether a given activity constitutes the practice of law and to impose sanctions against a person found to be engaging in or threatening to engage in such activity. This *360question was clearly and succinctly answered by this Court in W. Va. State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).”