dissenting:
I respectfully dissent because I believe that the majority has failed to understand *417the history and application of the Home Rule for Municipalities amendment to the West Virginia Constitution, Article VI, Section 39(a). This amendment does not foreclose a municipality which has obtained a special charter prior to the adoption of the Home Rule for Municipalities amendment in 1936 from utilizing the provisions of its special charter. The only inhibition is that special charter provisions cannot be utilized if they are inconsistent with our general municipal statutes.
The majority has concluded that Section 45 of the City of Charleston’s Charter that authorizes the municipal court clerk to act in the absence of the municipal judge, and Section 94 of its Charter which authorizes the municipal court clerk to issue warrants are invalid because there are no similar provisions in our general municipal statutes. This conclusion would be correct if special charters were abolished or if the Charleston Charter provisions were in conflict with our general municipal statutes. However, special charters have not been abolished nor are the Charter provisions in conflict since the general municipal statutes do not have any contrary provisions.
We addressed the general effect of the Home Rule for Municipalities amendment in Matter of City of Morgantown, 159 W.Va. 788, 226 S.E.2d 900, 903 (1976):
“The Municipal Home Rule Amendment, ratified in 1936, required the Legislature to provide by general law for the incorporation and government of all municipalities. Prior to this constitutional amendment, the Legislature with very limited restriction, was empowered to exercise its absolute power over municipalities through special acts.” (Emphasis in original; footnotes omitted)
After the adoption of the Home Rule for Municipalities amendment, the Legislature enacted W.Va.Code, 8A-1-1, et seq. (1937), entitled Municipal Home Rule, which was a comprehensive statute relating to the procedures that municipalities could follow in order to obtain Home Rule powers as set out in Chapter 8A. Under the provisions of W.Va.Code, 8A-1-9 (1937), the existing status of special charter cities was expressly confirmed:
“The corporate being and powers of every city now existing is hereby confirmed. General and special laws and municipal charters in effect upon the adoption of this chapter shall remain in operation and effect unless amended or repealed by a general law hereafter enacted, or until a municipal charter is amended in accordance with article two of this chapter.”
In State ex rel. Tucker v. City of Wheeling, 128 W.Va. 47, 35 S.E.2d 681 (1945), we recognized that a special charter city could not claim the powers under the Municipal Home Rule Act unless it had elected to come within it by holding a charter election and adopting Home Rule powers as set out in W.Va.Code, 8A-2-1, et seq. (1937).
In 1969, the Legislature enacted a comprehensive revision of our municipal statutes and we spoke to the scope of this act in Hogan v. City of South Charleston, 164 W.Va. 136, 260 S.E.2d 833, 835 (1979):
“In 1969 the Legislature made an extensive revision of Chapter 8 of the West Virginia Code. One of the principal purposes of our State municipal law set out in W.Va.Code, 8-1-1, was to provide a degree of uniformity to the type of powers granted to municipalities by the Legislature. Prior to 1969, the powers of a given municipal corporation were embodied in several scattered and sometimes conflicting sources, viz., special legislative charters, the general municipal statutes found in former Chapter 8 of the W.Va.Code and powers granted under the home rule provisions of former Chapter 8A of the Code.
“The new State municipal law did not abolish existing municipal charters, W.Va.Code, 8-1-5, but did provide a set of specific interpretive guidelines to resolve conflicts or dissimilarities between the provisions of the new municipal law and existing charter provisions, W.Va.Code, 8-1-6.” (Emphasis added; footnotes omitted)
That the 1969 Act did not abolish existing special legislative charters can be seen from the definition of the word “city” in W.Va.Code, 8-l-2(a)(2) (1969):
*418“ ‘City’ is a word of art and shall mean, include and be limited to any Class I, Class II and Class III city, as classified in section three [§ 8-1-3] of this article (except in those instances where the context in which used clearly indicates that a particular class of city is intended), heretofore or hereafter incorporated as a municipal corporation under the laws of this State, however created and whether operating under (i) a special legislative charter, (ii) a home rule charter framed and adopted or revised as a whole or amended under the provisions of former chapter eight-A of this Code or under the provisions of article three [§ 8-3-1 et seq.J or article four [§ 8-4-1 et seq.] of this chapter, (Hi) general law, or (iv) any combination of the foregoing.” (Emphasis added)
Furthermore, and as discussed in Hogan v. City of South Charleston, supra, the Legislature created a statutory formula under W.Va.Code, 8-1-6 (1969), for classifying and solving potential conflicts between the provisions of old legislative special charters and the provisions of the 1969 Municipal Code of West Virginia. Of particular applicability to the present case is classification number 4 which is: “As to any particular charter provisions, there may be no counterpart of such provisions in this chapter.” 1
In the latter part of this statute, the Legislature has resolved the class four problem as follows:
“As to possibility (4), the charter provisions shall remain in operation and effect until amendment or repealed by general law hereafter enacted or until hereafter supplanted by a new charter or revised as a whole or amended in accordance with the provisions of this chapter.”
There is no argument over the fact that our general Municipal Code does not contain any provision relative to the right of a municipal court clerk to issue warrants. The majority ignores the provisions of W.Va.Code, 8-1-6 (1969), and in particular the class four language which would authorize validation of Charleston’s special charter provision.
While the United States Supreme Court has held that a person issuing a warrant must be neutral and detached from law enforcement activities, it is clear that a municipal clerk who is not connected to law enforcement can constitutionally perform such functions. This was the unanimous opinion of the United States Supreme Court in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), where the Court sanctioned warrants issued by the Clerk of the Municipal Court of Tampa.2
The fundamental error of the majority lies in not realizing that Charleston’s special charter provision authorizing a municipal court clerk to issue warrants is a valid provision since there is no counterpart under our general municipal statutes.
. The relevant portion of W.Va.Code, 8-1-6 (1969), classifying the potential conflicts is: “[W]hen the provisions of existing special legislative charters are compared with and are considered in the light of the provisions of this chapter, there are five basic possibilities as to the relationship between such charter provisions and the provisions of this chapter, namely: (1) As to any particular charter provisions, such charter provisions may be inconsistent or in conflict with the pertinent provisions of this chapter; (2) although relating to the same subject matter and although not inconsistent or in conflict with any provisions of this chapter, certain charter provisions may be sufficiently different from pertinent provisions of this chapter as to indicate, as a matter of practical construction, that either the charter provisions or the provisions of this chapter, but not both, should be applicable; (3) although varying in certain respects, certain charter provisions may be similar to and in essential harmony with corresponding provisions of this chapter; (4) as to any particular charter provisions, there may be no counterpart of such provisions in this chapter; and (5) as to any provisions of this chapter, there may be no counterpart charter provisions.”
. I agree that to the extent that Section 94 of the City of Charleston’s Charter authorizes law enforcement personnel to issue warrants, it is unconstitutional and that State ex rel. Sahley v. Thompson, 151 W.Va. 336, 151 S.E.2d 870 (1966), which sanctions this practice, must be overruled.