concurring:
I concur completely as to the action of the Court in holding that a vacancy exists in the office of commissioner, and in the action of the Court in refusing to issue a writ of mandamus against the Governor, for the reason, among others, that in so far as the statute here involved authorized the Governor to fill such vacancy, it is unconstitutional and void. I am of the further view, however, that the question relating to the other feature of the statute is not reached, not even raised, no facts existing which permit consideration thereof, and is not briefed or argued, and should not now be decided.
In State v. Furr, 101 W. Va. 178, 132 S. E. 504, we held: “4. If among other questions raised there be one as to the validity of some part of an act of the Legislature which is not actually involved, no decision thereon is proper, and should be declined.”
In the instant case, the constitutional provision which requires the holding of unconstitutionality of the statute as to the filling of the vacancy here existing, clearly says that the county court shall fill “vacancies in *610the office of commissioner”, making, or indicating, no exceptions, yet this Conrt, as I understand the opinion, reads exceptions into the constitutional provision. I believe that such question should await a proper case. Moreover, the question that, if in case of some emergency, the Legislature is empowered to enact legislation authorizing the Governor to make some temporary appointment to avoid an emergency, the question remains whether such appointment should be authorized merely for the purpose of creating or providing a quorum, or whether such an appointment should be until the next general election. Such questions should also, I think, await a case presenting proper factual questions. There remains also the question of whether the enactment declared unconstitutional in part, and constitutional in part, is of such nature, or was intended by the Legislature, to be separable as to its respective supposed functions. The history of this enactment leaves very great doubt in my mind that it is such a statute. See State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11; State v. Edwards, 95 W. Va. 599, 122 S. E. 272.