dissenting:
I am compelled to dissent from the majority.
It is not disputed that the defendant, Skinner, was not eligible to hold the office of Prosecuting Attorney when he filed his certificate announcing his candidacy, nor was he eligible to hold this office at the date this case was decided.
Section 8, Article IV of the Constitution of West Virginia, reads as follows:
“The legislature, in cases not provided for in this Constitution, shall prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed.” (Emphasis added.)
Based upon this provision, I feel that the legislature is authorized to regulate both primary and general elections.
Chapter 3, Code of West Virginia, 1931, as amended, is entitled “Elections,” and a. reading of Sections 1 and 2 of Article 1 of this chapter leaves no doubt in my mind that the legislature intended certain provisions of this chapter to apply to primary elections as well as general elections.
Article 5 of the above-mentioned Chapter 3 makes provision for primary elections and nominating procedure.
Section 7, Article 5, Chapter 3, Code of West Virginia, 1931, as amended, contains the statutory requirements for announcing candidacy for nomination. The very first sentence of this section reads in part: “Any person who is eligible to hold an office . . . .” (Emphasis added.) This section also provides the statutory form of certificate to be filed by a person seeking nomination and also requires the *818candidate to certify before some officer qualified to administer oaths that “I am eligible to hold the said office . . . (Emphasis added.)
The language of Section 7, Article 5, Chapter 3, Code of West Virginia, 1931, as amended, which requires a person who “is” eligible to “certify” in his certificate of announcement that “I am eligible to hold the said office . . .” is so clear and unambiguous that it does not require any judicial interpretation or construction. Both the verbs “is” and “am” used in this statute are in the present tense and I feel must, and should, apply to the time when the candidate files a certificate of nomination.
It is axiomatic that when a statute is clear and unambiguous the statute should not be interpreted by the courts. See State of West Virginia v. General Daniel Morgan Post No. 548 V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959), in which this Court held in Syllabus Points 4 and 5, as follows:
“Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use.”
“When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.”
The language of Section 7, Article 5, Chapter 3, Code of West Virginia, 1931, as amended, does not say the candidate may become eligible, or probably or possibly will be eligible at some later date, but in clear language requires such eligibility to exist at the date of his announcement of candidacy. The candidate must also “certify” that he is eligible. Black's Law Dictionary (Third Edition) defines the word, certify: “To testify in writing; to make known or establish as a fact.” Can a candidate make known as a fact when he announces for an office that he is eligible when it clearly appears that he only has the opportunity or possibility of qualifying for such *819office at a later date, and that such opportunity or possibility may or may not happen? To permit ineligible persons to announce as candidates on the possibility or even probability of later removing such ineligibility violates the clear and unambiguous language of the above-cited statute.
In my opinion, the majority opinion will effectively nullify any statute which imposes requirements for nomination for office, such as age, residency in a county or magisterial district, or party affiliation, since these in-eligibilities could also be removed by the passage of time, or by moving to the proper location, or change of party affiliation after the primary.
For the foregoing reasons, I would have granted the writ of mandamus prayed for.