dissenting in part and concurring in part.
As I firmly believe that mandamus is not the proper remedy to compel a county board of ballot commissioners to omit or remove from an election ballot the name of any candidate who has filed and has been certified by the proper authority as a candidate to be voted for in a primary election, I dissent from the holding of the majority of this Court which, adhering to the erroneous and ill considered cases of State ex rel. Duke v. O’Brien, 145 W. Va. 600, 117 S. E. 2d 353; State ex rel. Zickefoose v. West, 145 W. Va. 498, 116 S. E. 2d 398; Adams v. Londeree, 139 W. Va. 748, 83 S. E. 2d 127; and State ex rel. Pack v. Karnes, 83 W. Va. 14, 97 S. E. 302, instead of the sound and well reasoned cases of State ex rel. Schenerlein v. The City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788; State ex rel. Harwood v. Tynes, 137 W. Va. 52, 70 S. E. 2d 24; and State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 103 S. E. 399, is that mandamus lies and is a proper remedy to accomplish that result. The reasons for my dissent on that phase of this case are the same as those stated in detail and at length in the dissenting opinion filed by me in State ex rel. Zickefoose v. West, 145 W. Va. 498, 116 S. E. 2d 398. That dissent appears at page 514 of volume 145 of the West Virginia Reports and at page 407 of volume 116 S. E. 2d; and instead of repeating those numerous and specific reasons in this dissent, I here make express reference to that dissenting opinion for a more detailed expression of my views on that question. In addition to such reference, I now reiterate and reemphasize, as one of the main reasons set forth in that dissenting opinion, that it is the basic principle in the law of mandamus, repeatedly recognized and applied by this Court, until recently, that a writ of mandamus will not be awarded to require the *552person to whom it is directed to perform an act which bylaw he is not required or empowered to perform. Until the decisions in two recent cases this principle was consistently recognized, applied and adhered to by this Court, in its decisions in many cases. State ex rel. Wilson v. The County Court of Barbour County, 145 W. Va. 435, 114 S. E. 2d 904; State ex rel. Schenerlein v. The City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788; State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416; State ex rel. The City of Huntington v. Heffley, 127 W. Va. 254, 32 S. E. 2d 456; Butler v. Compensation Commissioner, 107 W. Va. 619, 149 S. E. 828; Pardue v. County Court of Lincoln County, 105 W. Va. 235, 141 S. E. 874; State ex rel. Kelly v. State Road Commission, 102 W. Va. 88, 134 S. E. 465; State ex rel. Matheny v. County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959; Dempsey v. Board of Education of Hardee District, 40 W. Va. 99, 20 S. E. 811. See also 55 C.J.S., Mandamus, Section 10c; 34 Am. Jur., Mandamus, Sections 62 and 76.
Article 1, Chapter 3, Code, 1931, as amended by Chapter 64, Acts of the Legislature, 1963, Regular Session, (formerly Article 5, Chapter 3, Code, 1931, as amended), which provides for the creation of a board of ballot commissioners for each county and defines in Section 21 (formerly Section 3) the duties of the board, does not, and could not constitutionally, authorize or empower such board to determine the qualification or the eligibility of any candidate to be elected to or hold any public office, which is a judicial question, or to omit or remove the name of any such candidate from the printed ballot. The only duty or authority imposed upon or vested in the board by the statute is to provide printed ballots for every election for public officers, in which the voters or any of the voters within the county participate, and to cause to be printed, on the appropriate ballots, the name of every candidate whose name has been certified to or filed with the clerk of the circuit court of the county in any manner provided for in Chapter 3 of the Code. There being no duty imposed upon the board or authority vested in it to determine the qualification or the eligibility of any can*553didate to be elected or to hold any public office, it may not be required, in a mandamus proceeding, to omit or remove the name of any such candidate from such ballot on the ground that such candidate is not qualified or eligible to be elected to or hold such office, and can not be required in such proceeding to consider or determine any such question.
I do not question the jurisdiction or the authority of this Court to determine, in the exercise of a judicial function, the qualification or the eligibility of a candidate for public office in a proper proceeding; but, in my considered judgment, this Court may not, in a mandamus proceeding, require a board of ballot commissioners to omit or remove from an election ballot the name of a candidate on the ground that he is not qualified to be elected to or is not eligible to hold the office for which he seeks to be a candidate. If the board of ballot commissioners, an administrative agency, can not determine, the qualification or the eligibility of a candidate for public office, as the majority opinion seems to concede, I can not agree that this Court in a mandamus proceeding can determine that question for the board and then require the board to comply with the order of the Court and do what it can not do in the first instance. The board of ballot commissioners does not possess and can not be validly vested with judicial power and, of course, can not determine, in the first instance, the judicial question of the qualification or the eligibility of a candidate for public office. In preparing ballots for an election the board of ballot commissioners performs a purely administrative act and this Court, in directing the board how to perform that function and, in effect, in this proceeding performing that function for the board, necessarily exercises administrative rather than judicial power which, by numerous decisions of this Court and by reason of the provisions of Article V, Section 1, of the Constitution of this State, that the legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others, this Court may not do. By its holding the majority, in effect, causes this *554Court, in the first instance, to do, for the board of ballot Commissioners, what admittedly the board can not do, and then to direct the board to do what the Court has done for it. With this conclusion I do not agree, and such a legal anomaly I can not accept. The orderly, valid way is for the board to perform the only duty imposed upon it by statute which is to provide printed ballots and cause to be printed on such ballots the name of every candidate whose name has been certified or filed with the circuit clerk in the manner provided by the statute and not to ignore or violate its duty by omitting the name of such person. If the voters select a person not qualified or not eligible to hold the office for which he was a candidate, which does not often occur, his right to be elected or not to be elected or to hold or not to- hold such office can promptly and validly be determined in any one of several available proceedings. The fears expressed by the majority that no opposition candidate, public official, or other person, will institute such proceeding are contrary to every day experience in political and governmental matters and in my judgment are completely fanciful and utterly groundless.
Though I emphatically dissent from the foregoing holding, inasmuch as it has been determined by the majority in this proceeding that mandamus is the proper remedy to require the board of ballot commissioners to omit or remove the name of the defendant Prowse as a candidate for the Democratic nomination for the office of Prosecuting Attorney of Fayette County, West Virginia, from the official printed ballots to be used at the Primary Election on May 12, 1964, I concur in the holding of the majority that the defendant Prowse, not being an attorney at law licensed or authorized to practice in the courts of this State, is not qualified to be elected to and is not eligible to hold the office of prosecuting attorney in that county. I would, however, refuse the writ prayed for because, as previously stated, mandamus is not the proper remedy to obtain the relief sought by the petitioner in this proceeding.