dissenting:
I dissent. Deferentially and respectfully, but with a feeling of judicial shock, do I find myself again in disagreement with the majority of this Court upon the principal issues which have been before this Court on three or four occasions *559arising out of the magisterial redistricting of Logan County by the county court in a two to one decision. This Court by a vote of three to one, Judge Calhoun being absent and the writer disagreeing with the majority, refused on the 31st day of March, 1966, to grant a temporary injunction and refer the case to the Judge of the Circuit Court of Logan County for the taking of evidence and a decision as to the validity of the action of the county court in redistricting the county at the time when such action was taken. It is my opinion that we would have avoided not only the confusion we are now facing but much confusion following the primary election by not taking that palpably erroneous position. It is not often that a court gets an opportunity so soon to right a wrong that it has committed. This Court has that second chance in this proceeding. The majority stubbornly and persistently points its finger to Chapter 7, Article 2, Section 2, of the Code, as amended, which gives a County Court the power to redistrict a County and refuses to look to any other applicable statutory or constitutional provision with the same result that the blind man obtained when he clung only to the trunk of the elephant and refused to admit that it had any other parts. Code, 3-1-21, as amended, and 3-4-10, as amended, respectively, unequivocally give the board of ballot commissioners of Logan County the power to compose an official ballot, and ballot labels for use in voting machines, for the primary election to be held next Tuesday. The county court and its clerk, both respondents, have refused to accept that ballot and have prepared ballots or ballot labels of their own without any authority to do so and this Court supinely refuses to interfere. The ballot commissioners are required to prepare such official ballot or ballot labels subsequent to the last day for filing by candidates for office and that is a mandatory duty with which they can be forced to comply. They have done so without any mandatory action by this or any other court. They have no authority to prepare an official ballot for the primary election of Logan County which shows more than three magisterial districts therein because as of the date that this ballot must be prepared there were only three magisterial districts in Logan County. Thus, if we went *560■no further;-it is obvious that the action of-the'county court is-invalid. Even though-they have the power to redistrict they do not have-the power to do so in violation-of the electoral -statutes and their action in so doing is also in violation of-the-following provisions of the constitution of this state and of the United States: Article III, Sections 3, 10 and 17; Article IV, Sections 1, 2 and 11; Article VIII, Section 27; and, Article IX-, Section 2, W. Va. Const.; the 14th, 15th and 19th Amendments to the Const, of the U. S. •These constitutional provisions generally are directed to the conduct of free and orderly elections and the enfranchisement of-the citizens of • the state and specifically to the election of justices of the peace and constables in each magisterial district. The action of the county, court- in redistricting thirty-five days, previous to the primary election has thus rendered these mandatory constitutional provisions impossible of accomplishment. - .
For at least one other reason the action of the county court is in violation of several of the above constitutional provisions. _ That order ‘‘abolished” the three existing magisterial districts of Logan County and then purported to create four new districts. As final proof that that is true they changed the name of the district formerly known as Chap-manville and renamed it Guyan District. If it had not been a new district the name could not have been changed without the order so providing in accordance with the pertinent section of the code. Voting precincts are integral parts of magisterial districts and cannot exist otherwise. Code, 3-1-5, as amended, provides:
“The precinct shall be the basic territorial election unit. The county court shall divide each magisterial district of the county into election •precincts, shall number the precincts, shall determine and establish the boundaries thereof, and shall designate one voting place in each precinct, which place shall be established as nearly as possible at the point most convenient for the voters of the precinct. Each magisterial district shall contain at least one voting precinct and each precinct shall have but one voting place therein. . . .” (Italics supplied.)
*561Code, 3-1-7, as amended, then provides that, subject to the foregoing, a county court may divide, consolidate or change the boundaries of a precinct as the public convenience may require, but that “No order effecting such change, division, or consolidation shall be made by the county court within ninety days next preceding an election. . . .” When the county court abolished the three magisterial districts of Logan County on. the 5th day of April, 1966, they also abolished all of the voting precincts ■ in those three magisterial districts. While the order which is a part of the record in this case shows that the county court attempted to create four new magisterial districts, it created not one voting precinct in either of the four new magisterial districts and no one, including this Court, can create a voting precinct other than the members of the county court of a county. Therefore, if this Court permits this election to be held in Logan County on the 10th of May it is very likely that we will have to hold after the election that there were no voting precincts in' Logan .County on Tuesday, May 10, 1966, and therefore no valid election was' held therein.
The solution to this dilemma is obvious and this is it: Grant the prayer of the petition of the ballot commissioners and direct the respondents to remove from the voting machines of Logan County the invalid ballots and/or lábels which the respondents illegally adopted and require them to pláce instead upon the voting machines the only official ballot in existence — the one adopted by the ballot commissioners — and no question can thereafter arise as to the validity of the May 10th primary election. It is true that in order to do that this Court will have to find that the action of the County Court of Logan County of April 5, 1966, was invalid because of its interpretation and application of the pertinent statutory provisions at the time and under the circumstances when the court acted. The statutes are clear that: candidates for public office in this state .in a primary election must file on or before the first Saturday of February next preceding an election and many .candidates did file as of that date, including four candidates ■for nomination for the office of justice of the peace of *562Chapmanville District. The record shows that five hundred or more absentee voters in Vietnam and other places have exercised their right to cast ballots and, as provided by the law, they have voted them upon the only official ballot that exists in Logan County, the one adopted by the ballot commissioners. Certainly the absentee voters who reside in the ten precincts that were illegally taken from Logan District and added to what was then Chapmanville District will have no opportunity to vote for candidates for district offices because those candidates do not appear upon the ballot inasmuch as they were not a part of Chapmanville District at the time the official ballot was printed.
While the majority might have, from their viewpoint, justified their refusal of the temporary injunction prior to the invalid act of the respondents on April 5, 1966, on the ground that viewed prospectively it might be assumed that respondents in that proceeding would not perform an unconstitutional act, there is no such presumption permissible in this proceeding. The respondents now have performed the illegal act and the record shows such for all men to see.
It is true, of course, that when an administrative body has the unequivocal power under a valid statute to perform an act the motives of its members, however improper or corrupt they may be, are not controlling. However, the rights of a large portion, almost all, of the 65,000 citizens of Logan County have been flagrantly violated and it is to them, not primarily the members of the two political factions, that this Court owes a paramount obligation to perform its constitutional duties. Its members should not raise in hauteur their august judicial robes, figuratively step over the feuding politicians pontifioally murmuring “a curse upon both of your houses” or “stew in your own juices,” and after the election we will try to determine in future proceedings who was nominated or elected.
If my brethren are of the opinion that the purpose of the maneuvering and litigation by the political factions was not to secure an honest election in Logan County but for reasons personal to themselves, I am completely in agree*563ment with them. But these factions compose only a minute portion of the citizens and voters of Logan County. Ninety-nine per cent of the people of Logan County are not professional politicians. On the contrary, they are law-abiding, patriotic men and women striving constantly to establish better government in that county by electing better men and women to political offices. If they are completely confused as to why this Court refuses them relief I, who unofficially am one of them, join in their perplexity. The power given to a county court to redistrict by Code, 7-2-2, as amended, is not unlimited but must be exercised so as to conform to the constitutional provisions hereinbefore quoted and in harmony with existing statutory law.
For the reasons stated I would grant the prayer of the petition, direct the respondents to use the official ballot, place the same upon the voting machines, and find that the action of the county court in attempting to redistrict Logan County thirty-five days previous to an election was invalid and of no effect.