concurring:
I concur fully in the decision embodied in the Court’s opinion in this case. At the time the case was decided, I felt that the legislative enactment in question was clearly unconstitutional for at least one reason not urged by briefs or oral argument of counsel. Since only the single basis of unconstitutionality was urged and discussed by counsel, it was deemed that a concurring opinion raising at least one additional constitutional question might be advisable or helpful. The Court’s opinion as written mates a passing reference to the additional constitutional question which makes the most forceful appeal to me; and, therefore, this concurring opinion may thereby have been rendered somewhat superfluous to that extent. Nevertheless, since further legislation in this area possibly may be undertaken, I file this concurring opinion of a cautionary nature.
Section 5 of Article XII of the Constitution of West Virginia provides in part: “The Legislature shall provide for the support of free schools by appropriating thereto * * # the net proceeds of all forfeitures and fines accruing to this State under the laws thereof; * * (Italics supplied.) The case of State v. Parkins, 63 W. Va. 385, 61 S. E. 337, involved a statute which provided that game wardens should receive as compensation for their services all fines assessed against persons arrested by them, respectively, for wild game and fish law violations. In holding that such statute was violative of the constitutional provision quoted above, the Court stated: “The Constitution commands that these fines go to the free schools; the act is directly to the reverse, diverting *617them from the free schools and giving them entire to the deputy fish wardens — a glaring conflict. * * * A different conclusion might cripple the schools'. ’ ’
The statute involved in this case provides that all fines assessed by justices of the peace shall be assembled in a designated fund or account. It provides further that various items for salary, including a salary of $3,000 to the clerk of the circuit court, rental, stationery, and other expenses shall be paid therefrom in a manner and to an extent not heretofore authorized by law; and finally the act provides that the balance, if any, remaining in such account or fund at the end of any fiscal year “shall become a part of the regular county general fund.” All fines levied by justices of the peace in Kanawha County would, by the terms of the act, be wholly diverted from the support of public schools. The act in this respect is, in my judgment, clearly violative of the constitutional provision quoted above.
I question the constitutionality of another provision of the act. The courts of justices of the peace were created by the Constitution, as were circuit courts and this Court. Harbert v. County Court of Harrison County, 129 W. Va. 54, 56-57, 39 S. E. 2d 177, 182. Section 27 of Article VIII of the Constitution of West Virginia provides that justices of the peace “shall be elected” on a district basis. The Constitution, so far as I know, makes no other provision for their selection, except that Section 30 of Article VIII provides in part: “Vacancies in the office of commissioner, clerk of the county court and justices of the peace, shall be filled by the county court of the county until the next general election.” (Italics supplied.) In the very recent case of State ex rel. G. Y. Neal, etc. v. W. W. Barron, Governor, etc., 146 W. Va. 602, 120 S. E. 2d 702, this Court reaffirmed its view that the provisions of the section of the Constitution quoted immediately above are mandatory, and that vacancies in the offices therein specified may not be filled in *618any manner other than by the connty court. Section 5 of the act now in question is as follows:
“Sec. 5. Appointment of Special Justice; Powers and Duties; Oath; Compensation; Bond. — The judge of any court of record exercising appellate jurisdiction from a justice court, either civil or criminal, or both, may, in the absence, sickness, or inability of a justice to act, appoint a special justice to sit during the absence, sickness or inability to act of the regular justice, who shall have all the powers and duties of the regular justice, but before assuming such powers and duties, he shall take the oath prescribed by the West Virginia constitution for public officials. A special justice shall be paid out of the justices’ account of the county general fund, the salary of the regular justice based upon the number of days he serves during the month as a special justice. Any special justice so appointed shall before he acts as said special judge be bonded in the same manner and in the same amount as a regularly elected justice.”
The Constitution seems to me to contemplate that justices of the peace shall be “elected”; that they shall act personally; that no other person may act in their stead; that there is no legal authorization for an office of “special justice”; and that if the office of justice of the peace becomes vacant from any cause, only the county court may fill the vacancy.
Assuming that the legislature is authorized to create the office of “special justice” and to clothe one holding such office with “all the powers and duties of the regular justice”, during the absence, sickness or inability of the duly constituted justice to act, we are brought face to face with Section 40 of Article VI of the Constitution which is as follows: “The Legislature shall not confer upon any court, or judge, the power of appointment to office, further than the same is herein provided for.” In the case of Poling v. County Court of Barbour County, 116 W. Va. 580, 182 S. E. 778, this Court held unconstitutional an act of the legislature which undertook to confer on the judge of a circuit court the power to fill by appointment a vacancy in the office of prosecuting attorney. For the reasons *619stated, I feel that Section 5 of the statute in question is manifestly unconstitutional.