dissenting:
Respectfully, I dissent from the decision of the Court in this case. The contentions of counsel for Brooks Miller made by brief and oral argument, the decision of the Circuit Court of Marshall County, and the decision of the Court in the present case have been based almost wholly upon McCoy v. Fisher, 136 W.Va. 447, 67 S.E.2d 543, which hereafter in this opinion may be referred to merely as the McCoy case. I consider that case palpably untenable from a legal standpoint. It should be overruled by the Court before it forms the basis of another unfortunate and *699farcical situation such as that which has resulted from the decision in the present case.
“The system of elections followed in the United States was unknown to the common law. The subject is entirely statutory, and the exercise of the right of suffrage is in all states regulated by constitutional and statutory provisions.” 25 Am. Jur. 2d, Elections, Section 4, page 695. To the same effect, see 29 C.J.S., Elections, Section 7 (1), page 36 et seq. “The right to vote may be exercised only on compliance with such statutory requirements as have been set up by the legislature.” 29 C.J.S., Elections, Section 7 (1), page 38. “The right to vote is not an inherent or absolute right generally reserved in bills of rights, but its possession is dependent upon constitutional or statutory grant.” 6 M.J., Elections, Section 2, page 564.
The following prior decisions of this Court sustain the general proposition that the manner of conducting elections of public officials and the manner in which the right to vote in elections may be exercised are prescribed by statutes which implement the limited provisions of the Constitution of West Virginia relating to the subject of elections: State ex rel. Brewer v. Wilson, 151 W.Va. 113, 120-21, 150 S.E.2d 592, 597; State ex rel. Zickefoose v. West, 145 W.Va. 498, 524, 116 S.E.2d 398, 412 (Judge Haymond’s dissenting opinion); Meisel v. O’Brien, 142 W.Va. 74, 77, 93 S.E.2d 481, 483; Simms v. The County Court of Kanawha County, 134 W.Va. 867, 871, 61 S.E.2d 849, 851; Evans v. Charles, 133 W.Va. 463, 468, 56 S.E.2d 880, 882; State ex rel. Robertson v. The County Court of Kanawha County, 131 W.Va. 521, 524-25, 48 S.E.2d 345, 348; State ex rel. For-sythe v. The County Court of Cabell County, 131 W.Va. 570, 576, 48 S.E.2d 412, 416; State ex rel. Lawhead v. County Court of Kanawha County, 129 W.Va, 167, 170, 38 S.E.2d 897, 899; Brannon v. Perkey, 127 W.Va. 103, 107, 31 S.E.2d 898, 901; Booten v. Pinson, 77 W.Va. 412, 421-22, 89 S.E. 985, 989-90; Morris v. Board of Canvassers of City of Charleston, 49 W.Va. 251, pt. 4 syl., 38 S.E. 500; Halstead v. Rader, 27 W.Va. 806, 808-09. . . .
*700Obviously there was at common law no right to cast a “write-in vote.” No such right is afforded by any provision of the Constitution of West Virginia. To the extent that such a right exists, the creation of the right must be found in statutes of this state which prescribe the manner of holding elections and the manner of voting. This Court has properly held that such a right does not exist in the absence of a statute creating such right. Section 11 of Article IV of the Constitution of West Virginia provides that the “legislature shall prescribe the manner of conducting and making returns of elections, * * (Italics supplied.) This Court has held that, by reason of the constitutional provision quoted in part immediately above, the legislature has been given wide powers “to make all reasonable regulations and restrictions as to' preparation of ballots and the conduct and returns of elections.” Morris v. Board of Canvassers of City of Charleston, 49 W.Va. 251, pt. 4 syl., 38 S.E. 500. In State ex rel. Lewis v. Board of Ballot Commissioners of Wood County, 82 W.Va. 645, 649, 96 S.E. 1050, 1052, the Court made the following statement: “The primary election statute makes no provision for writing in the name of a candidate on a party ballot, as may be done on the official ballot in a general election.” (Italics supplied.) This holding clearly states the fundamental legal proposition that, in the absence of a constitutional inhibition, the power of the legislature to prescribe the manner of voting in elections is plenary.
Pertinent statutes of this state provide for write-in votes at general elections in two situations. I am not aware of any other statute authorizing write-in votes to be cast at a general election. No such statute has been called to my attention either by counsel or by the Court’s opinion in this case.
Code, 1931, 3-6-5 (3), as amended, provides that a voter may vote for a person other than any candidate whose name appears as such on the official ballot for a general or special election. Generally speaking, this statute permits a voter, by a write-in vote, to “substitute” the name of a person of his choice for the name of any person who *701is disclosed by the official ballot to be a duly nominated candidate lor office at the general election.
The other statute which provides for casting write-in votes at a general election is Code, 1931, 3-6-2, as amended, which deals with preparation of official ballots for general elections. By the following language, the statute makes provision for write-in votes on official general election ballots in any instance in which there is no duly nominated candidate for a particular office: “* * * The name of each candidate shall be printed in a space defined by ruled lines, and with a black square on its left enclosed by heavy dark lines. If, upon any ticket, there be no candidate or candidates for a designated office, a blank space equal to the space that would be occupied by such name or names, if they were printed thereon, * * * shall be left.” (Italics supplied.)
All prior decisions of this Court which are cited in the McCoy case as authority for casting write-in votes at a general election fall into one or the other of the two statutory categories referred to immediately above. Cases within the first of the two categories are as follows: Brown v. Carr, 130 W.Va. 455, pt. 1 syl., 43 S.E.2d 401; Rollyson v. County Court of Summers County, 113 W.Va. 167, pt. 2 syl., 167 S.E. 83; State ex rel. Kincaide v. Canvassing Board, 85 W.Va. 440, pt. 2 syl., 102 S.E. 104; Stanton v. Wolmesdorff, 55 W.Va. 601, 603-604, 47 S.E. 245, 246-47.
Brannon v. Perkey, 127 W.Va. 103, 31 S.E.2d 898, was based on the second of the two statutory categories in which provision is made for write-in votes. Neither of these two statutory categories would sustain the propriety or legality of the write-in votes for sheriff in the instant case, for the reason that both categories contemplate an official ballot and sample ballots which must be prepared and printed by the board of ballot commissioners at least thirty days before the general election. Code, 1931, 3-1-21, as amended, and Code, 1931, 3-5-19, as 'amended.
*702I would overrule the McCoy case, primarily because the Court held in that case that a constable and a justice of the peace for Slab Fork District of Braxton County were elected by write-in votes in circumstances in which write-in votes were not legally authorized. Vacancies in both official positions had occurred and the vacancies had been properly filled by appointment of persons to fill the vacancies. Ample time remained thereafter for both the appointees or other persons to have been nominated as candidates for election, and to have had their names appear as candidates on the official ballot at the general election. Ample time remained for giving notice to the electorate, pursuant to pertinent statutory provisions, that an election to fill these positions would be held as a part of the general election. Ample time remained to prepare the official ballot in such a manner as to disclose to voters that the positions of justice of the peace and constable would be filled by election at the general election. This Court nevertheless held that a man was elected to the position of justice of the peace by having received twenty “write-in votes” and that another man was elected to the position of constable by having received eight “write-in votes.” Very respectfully I assert with confidence that no law of this state and no pertinent law of any other jurisdiction can be found to sustain the legal validity of the McCoy case. I confidently assert that no pertinent law, except the McCoy case, can be found anywhere to sustain the validity of the Court’s decision in the present case.
In the present case, the death of Sheriff Robert L. Eller occurred during the afternoon of October 23, 1970, approximately one week and three and one-half days before the polls opened for the general election which was held on Tuesday, November 3, 1970. The fact of the death of Sheriff Eller was promptly and widely reported to residents of Marshall County by the news media, including radio and television broadcasts and by newspapers, including The Moundsville Daily Echo, a newspaper published at Moundsville, in Marshall County, and by a newspaper *703published at Wheeling and widely circulated and read within Marshall County.
On or before October 27 or 28, 1970, the county court consulted G. Thomas Gall, Prosecuting Attorney of Marshall County, in relation to legal questions created by the death of Sheriff Eller and the consequent vacancy created in the office of sheriff at a time so near the date fixed by law for holding the general election. Gall in turn consulted Honorable William F. Lockhart, as assistant to the attorney general of this state. Gall and Lockhart, concurred in a legal opinion that, in the circumstances, valid write-in votes could not be cast at the upcoming general election and that the vacancy for the unexpired term could be filled only by an appointment to be made by the county court. As the majority opinion states, a Moundsville attorney took it upon himself to announce that valid write-in votes could be legally cast at the general election. In these circumstances, the news media merely reported the conflicting legal opinions and the consequent state of confusion and uncertainty. Immediately before the general election, various “candidates” became active in their efforts to induce voters to cast “write-in votes” at the general election.
At the general election held on November 3, 1970, 10,516 ballots were cast by voters of Marshall County, including 1,087 “write-in votes” cast for 43 persons for the office of sheriff in 36 of the 59 voting precincts of the county. The remaining 23 voting precincts reported no votes for the office of sheriff. Twenty of the 43 persons received one vote each. Thirty-five of the 43 persons received’ fewer than 5 votes each. Brooks Miller, the appellee in this case, received 557 of the 1,087 “write-in votes” cast for the office of sheriff, which was the highest number of votes cast for the 43 persons for whom such votes were cast.
The first point of the syllabus in this case, quoting the third point of the syllabus of the McCoy case, in relation to giving notice of an election to fill a vacancy, appears *704to be based largely upon Griffith v. County Court of Mercer County, 80 W.Va. 410, 92 S.E. 676. That the Griffith case is clearly distinguishable from the McCoy case and the present case is demonstrated by the language of the fourth point of the syllabus of the Griffith case, which is as follows:
“Failure of the county court to publish notice of an election to fill a vacancy in the office of commissioner, as provided in section 9, chapter 4, Code, does not avoid the election, if it appears that candidates for such office were regularly nominated at a primary election, and were voted for at the general election by the great body of voters.” (Italics supplied.)
The second point of the syllabus of the present case, quoting the second point of the syllabus of Morris v. Board of Canvassers of City of Charleston, 49 W.Va. 251, 38 S.E. 500, is clearly not in point. In the first place, that case dealt with an ©lection for which official ballots were provided. On the contrary, one of the primary questions involved in the present case is whether a lawful election for sheriff was held. The rule of the Morris case, as I understand it, is a rule formulated primarily as a guide by which to determine the intenti of the voter as disclosed by his ballot. Cases in this category are cited in the application of the language of Code, 1931, 3-6-5, as amended, which specifies various guidelines for ascertainment of the intention of a voter as disclosed by his ballot cast at a general .election, a portion of which is as follows: “No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” In the present case, we are not called upon to consider the intent of voters as disclosed by ballots, nor are we concerned with mere “mistakes and irregularities” which may “destroy the ballot.” On the contrary, the present case involves only questions of law, including the question whether an election for sheriff was held and whether, in any event, “write-in votes” were legally permissible and valid.
*705The fourth point of the syllabus of this case states that, pursuant to Code, 1931, 3-6-5 (3), as amended, a voter may “substitute” the name of a person for whom he desires to vote in lieu of the name of a candidate whose name appears on the ballot to be a duly nominated candidate. This syllabus point is patently inapposite and can have no conceivable application to the legal questions presented for decision in the present case. There has been no contention that any of the 1,087 voters substituted the name of a person for whom he desired to vote for the office of sheriff. These voters did not substitute names. They merely inserted names on official ballots which made no provision whatsoever for election of a sheriff for the unexpired term.
The fifth point of the syllabus, as applied to the present case, is not based upon any statute or legal precedent except upon the glaringly unsound holding of the McCoy case.
The Court in this case, as in the McCoy case, has made the point that, by reason of the provisions of Section 7 of Article IV of the Constitution of West Virginia and the provisions of Code, 1931, 3-10-1, as amended, the voters of Marshall County were charged with knowledge of the fact that the vacancy in the office of sheriff would be filled at a general election to be held in that county on Tuesday next after the first Monday in November. That the voters of Marshall County had knowledge of the fact that a general election was to be held is evidenced by the fact that 10,516 of them cast ballots in the general election involved in this case. The fact that the voters of Marshall County had no knowledge that an election would be held at the same time for the office of sheriff is evidenced by the fact that only 1,087 voters undertook to cast votes for election of a sheriff. As I shall undertake to demonstrate subsequently in this opinion, the Court erroneously overlooks the fact that an election to fill a vacancy in the office of sheriff is a “special election”, though properly held and conducted in connection with a general election.
*706The Court erroneously holds in this case that the voters of Marshall County were charged with knowledge that, at the general election, a sheriff would be elected by “write-in votes” for the unexpired term. This holding of the Court is based primarily upon the following language of Section 7 of Article IV of the Constitution of West Virginia: “* * * When vacancies occur prior to any general election, they shall be filled by appointments, in such manner as may he prescribed herein, or by general law, which appointments shall expire at such time after the next general election as the person so elected to fill such vacancy shall be qualified.” (Italics supplied.) The Court treats the foregoing constitutional provision as self-executing.
It is obvious that the framers of the Constitution contemplated that the limited provisions therein pertaining to general elections would be implemented by statutes providing for the procedure for holding general elections, for both regular terms and for unexpired terms of office. The implementing statutes are found in the very extensive and detailed provisions of Chapter 3, Code, 1931, as amended. These statutory enactments have been made, in a great measure at least, pursuant to the following provisions of Section 8 of Article IV of the Constitution of West Virginia: “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.” (Italics supplied.) The constitutional provisions to which reference has been made in this case do not in any sense undertake to specify by what procedure a vacancy in an office of sheriff shall be filled by election at a general election. We must look to the statutes, therefore, for guidance in determining the procedure by which one may be elected to fill the unexpired term of the office of sheriff.
We should not overlook the following clear and mandatory language of Section 2 of Article IV of the Constitution of West Virginia: “In all elections by the people, *707the mode of voting shall be by ballot; * * In the present ease, the Court necessarily has held that this mandatory constitutional provision was followed, notwithstanding the fact that the official ballot for the general election involved in this case made no provision of any sort for an election of a sheriff. The official ballot disclosed nothing from which it could be inferred that it afforded any basis or means whatsoever for electing a sheriff for the unexpired term.
Under the provisions of Code, 1931, 3-10-8, as amended, it is the duty of a county court or its president to publish a notice that an election will be held to fill a vacancy in an office of sheriff for an unexpired term. Such a notice, under Code, 1931, 3-10-6, as amended, must be “published prior to such election as a Class II-O legal advertisement in compliance with the provisions” of Article 3 of Chapter 59, Code, 1931, as amended. Code, 1931, 59-3-2 (b), as amended, provides that a Class II-O legal advertisement shall be published once a week for two successive weeks in two qualified newspapers “of opposite politics in the publication area; * * (Italics supplied.) The publication area in the present case, of course, was Marshall County. Code, 1931, 59-3-1 (a) (3), as amended, provides: “ ‘Once a week for two successive weeks’ means two publications of a legal advertisement in a qualified newspaper occurring within a period of fourteen consecutive days with at least an interval of six full days within such period between the date of the first publication and the date of the second publication.”
The record in this case fails to disclose whether there are two newspapers of opposite politics published in Marshall County or whether, if there are two such newspapers, one is or is not a weekly newspaper. The term “qualified newspaper” is defined in Code, 1931, 59-3-1 (b), as amended. The West Virginia Blue Book, 1971, at pages 549 and 551, discloses that Moundsville Daily Echo is a Democratic daily newspaper published at Moundsville and that The Cameron News is a Republican weekly newspaper published on Wednesday of each week at Cameron, *708in Marshall County. The first publication of The Cameron News after the death of Sheriff Eller would have appeared on Wednesday, October 28, 1970, and the next or second publication would have been on Wednesday, November 4, 1970, one day after the date of the general election involved in this case. The record in this case, therefore, fails to disclose that the required publication could have been made in the interval between the date of the death of Sheriff Eller and the date of the general election, 'even if it be assumed that pertinent statutes would sustain the legality of a publication of notice in any event at a time so near to the date fixed by law for holding the general election.
Code, 1931, 3-10-8, as amended, relating to elections to fill vacancies in offices for unexpired terms, contains the following language: “Notice of an election to fill a vacancy in any of the offices named in this section shall be given by the county court, or by the president thereof in vacation, * * *. Nomination of candidates to fill any such vacancy shall he made in the manner prescribed in said section six of this article for nominating candidates to fill a vacancy in the office of the clerk of the circuit court.” (Italics supplied.) Code, 1931, 3-10-6, as amended, relating to vacancies in the office of a clerk of a circuit court, provides that the circuit court, or the judge thereof in vacation, shall fill the vacancy by appointment of a person to hold the office until the next general election or until a successor is elected and qualified. Thereafter the statute contains the following language:
“The circuit court, or the judge thereof in vacation, shall cause a notice of such election to be published prior to such election as a Class II-O legal advertisement in compliance with the provisions of article three * * *, chapter fifty-nine of this Code, and the publication area for such publication shall be the county involved. If the vacancy occurs before the primary election held to nominate candidates to be voted for at the general election, at which any such vacancy is to be filled, candidates to fill such vacancy shall be nominated at such primary election in accordance with the *709time requirements and the provisions and procedures prescribed in article five of this chapter. Otherwise, they shall he nominated hy the county executive committee in the manner provided in section nineteen, article five, of this chapter, as in the case of filling vacancies in nominations, and the names of the persons, so nominated and certified to the clerk of the circuit court of such county, shall he placed upon the ballot to he voted at such next general election ” (Italics supplied.)
The statutory language quoted above seems clearly to contemplate that notice of an election to fill a vacancy in an office of sheriff for an unexpired term shall be published sufficiently in advance of the general election to permit nomination of candidates for such office by one of the procedures prescribed by statute for the making of nominations of candidates in order that the names of such candidates, or lack of such duly nominated candidates, may be made to appear on the general election ballot which, pursuant to the requirement of Code, 1931, 3-1-21, as amended, must be printed by the board of ballot commissioners “at least thirty days before the date of” the general election.
Code, 1931, 3-10-1, as amended, contains the following language which strongly tends to substantiate the view that an election to fill the office of sheriff for an unexpired term contemplates an official general election ballot prepared, printed and published at least thirty days before the day of the general election: “Elections to fill vacancies shall be for the unexpired term, and shall be held at the same places, and superintended, conducted and returned, and the result ascertained, certified and declared, in the same manner, and by the same officers, as in general elections.” (Italics supplied.) The statutory language quoted above tends to demonstrate that if an election to the office of sheriff had been legally held on November 3, 1970, it would have been a “special election” as to' that office conducted “m the same manner * * * as in general elections.”
In relation to the distinction between a regular or general election and a special election, the following language *710appears in 25 Am. Jur. 2d, Elections, Section 3, pages 692-94.
“A regular or general election is one that recurs at stated intervals as fixed by law, without any superinducing cause other than the passage of time, and is held to select an officer to succeed to the office on the expiration of the full term of the incumbent. A special election, on the other hand, is one that arises from some exigency or special need outside the usual routine, such as to fill a vacancy in office, * * *.
“Under some constitutional and statutory provisions it is held that a general and a special election may be held on the same day and at the same place. * * *.
“Distinctions between special and general elections are concerned only with the steps taken in advance of the election, such as giving notice of time, place of holding, and objects of the election. * * * »
In Eakle v. Board of Education, 97 W.Va. 434, 441, 125 S.E. 165, 168, the Court made the following statement:
“A general election may be said to be an election held for the choice of National, State, judicial, district, municipal, county or township official required by law to be held regularly at a designated time, to fill a new office or a vacancy in an office at the expiration of the full term thereof(Italics supplied.)
See also State ex rel. Pinson v. Varney, 142 W.Va. 105, pt. 2 syl., 96 S.E.2d 72; 29 C.J.S., Elections, Section 1 (2), page 15.
The following language appears in 29 C.J.S., Elections, Section 1 (2), page 15: “While it has been held that an election to fill a vacancy is not a general election, by 'virtue of statute an election to fill a vacancy may be a general election.” (Italics supplied.) The McCoy case is the only authority cited in the footnote in support of the italicized portion of the quotation appearing immediately above.
*711In relation to the provisions of Section 7 of Article IV of the Constitution of West Virginia, the Court made the following sweeping statement in its opinion:
“It should be emphasized that the vacancies to be filled for the unexpired term are vacancies that occur at any time prior to 'any general election and that the Constitution contains no provision that such vacancy must occur at any specified time before such general election. If the framers of the Constitution had intended to fix a cutoff date or a deadline of any specified time for the occurrence of a vacancy before a general election to be filled for the unexpired term at such election, as has been contended, they could and undoubtedly would have provided such a specified period of time for the occurrence of the vacancy before a general election. The omission of any such specified time shows clearly that the time of the occurrence of a vacancy before a general election is utterly immaterial and that, regardless of the time of the occurrence of the vacancy, it must be filled at such election for the unexpired term of the office in which the vacancy occurs.”
Here again I assert that the Court has erred by treating the constitutional provision as self-executing and by wholly ignoring the statutes enacted to implement the very limited and general constitutional provisions relating to elections. In the language of the opinion quoted above, the Court has ignored the provisions of Section 8 of Article IV of the ‘Constitution which authorizes the legislature to prescribe, “by general laws,” the manner in which public officers “shall be elected, appointed and removed.”
If the Court is correct in its holding stated in the language of the opinion previously quoted in this dissenting opinion, it necessarily follows that numerous statutes of this state dealing with the manner of filling vacancies in public offices are utterly meaningless and perhaps even unconstitutional.
In the light of the Court’s decision in this case that, if a vacancy in an office occurs “at any time prior to any *712general election”, it must be filled at the general election, it necessarily follows that, if the death of Sheriff Eller had occurred “at any time” during Monday, November 2, 1970, there would- have been a mandatory constitutional requirement that the resulting vacancy in the office of sheriff be filled as a part of the general election held on the following day; -and it necessarily follows that if, at that general election, one person had received two “write-in votes” and another person had received one “write-in vote” for the office of sheriff, the person who received two votes would have been duly and legally elected to the office of sheriff for the unex-pired portion of the term. If the suppositious case I have stated appears to be ridiculous, it follows that the Court’s opinion must be characterized as ridiculous.