dissenting:
I disagree with the majority’s interpretation of Poling v. County Court, 116 W. Va. 580, 182 S.E. 778 (1935) and would hold Poling controlling in this case. The majority avoids Poling, finding that because the statute involved was a part of the election law in our state (see footnote 6 of the majority opinion) and authorized circuit judges to fill vacancies in the office of prosecuting attorney until next elections, it was different than this statute which allows a judge to appoint a prosecutor in a particular case.
The difference is one only of degree. I see no constitutional distinction between appointment of a prosecutor for the remainder of a term (what if a prosecutor resigned, with one case remaining to be tried?) and appointment for a particular case. The first may go to all the duties of the office; but the other may have just as significant an impact upon the office, the courts, and the criminal justice system as a whole, and certainly does have that impact as to the matter for which the special prosecutor is appointed.
*175The appointment of a special prosecutor is an appointment to office and violates Art. VI, Sec. 40 of the West Virginia Constitution. Certainly the constitution does not differentiate between appointments authorized under election laws and appointments by authority of any other laws. As noted in Poling:
The Legislature shall not confer upon any court, or judge, the power of appointment to office, further than the same is herein provided for,” sayeth the Constitution. That language is its own expositor. The words are too plain to mistake. The mandate is too positive to evade. No provision is made in the Constitution whereunder the power of appointing a prosecuting attorney may be conferred on circuit courts and judges. 182 S.E. at 779.