City of Blackwell v. Cross

. Hates, J. (after stating the facts as above). Several propositions are presented by the pleadings in this case and have been ably discussed b}' counsel, but one of defendant’s contentions under his motion to quash the alternative writ is that this action is prematurely brought, that plaintiff has no clear legal right to the relief he seeks, and that defendant is required by no duty under the law- to do at this time that which plaintiff seeks to have him coerced to do. We shall consider this contention first, for it follows that, if defendant’s contention is correct in this, the relief which plaintiff seeks should not be granted. The state is divided into 75 counties, and temporary county seats are designated by the 'Constitution. Sections 6-8, art. 17, Const.; sections 326-410, Bunn’s Ed. The first paragraph of said section 6 provides that the county seats therein named shall remain such until changed by vote of the qualified electors of any such county in the manner therein provided. The second paragraph of this section provides upon what conditions and by whom such election may be called. The third paragraph directs the manner of holding the election, and how candidates for designation as county seats may have their names placed upon the ticket. The fourth paragraph directs that the returns of the vote cast at any such election shall be made by the board of canvassers to the Governor who shall declare the result and cause the will of the electors to be carried into effect. The succeeding paragraph lays down the rules which shall govern in determining the results of any such election in the following words: “If a majority of all the votes cast in the county at such county seat election shall be in favor of any town, such town shall thereafter be the county seat: Provided, however, that where the county seat *752 named in this Constitution is within six miles of the geographical center of the county (said geographical center to be determined by certificate from .the Secretary of State, and said distance to be determined by measurement from said geographical center to the nearest corporate limits of such county seat, as they existed on the twenty-first day of January, nineteen hundred and seven), it shall requite sixty per centum of the total vote cast at such election by the competing town to effect the removal of such county seat, unless, * * *” The time when the Secretary of State shall prepare and furnish his certificate of location of the geographical center of any county and the distance of the same from the temporary county seat is not fixed by any specific language in the Constitution, and we are therefore compelled to look to the whole text of the Constitution relative to elections for the removal- of county seats to determine when-it becomes the duty of the Secretary of State to make such certificate. It certainly did not become the duty of the Secretary of State upon the admission of the state and his advent into office to prepare such certificates for every county in the state, nor is it made an act prerequisite to the calling and holding of a county seat election. In those paragraphs prescribing the conditions upon which the election shall be called and the manner in which the same shall be held no reference is made to this duty of the Secretary of State. It is in those provisions providing for the determining and declaring of the results we find such duty imposed' upon him. The .purpose of this certificate is not in any way to aid in the calling and holding of the election and could have no such effect; but the framers of the Constitution and the people who adopted it recognized that there might be instances where the location of a temporary county seat relative to the geographical center would be such that there would be controversy and doubt as to whether -the same was within six miles thereof; and it was to provide the Governor, whose duty it is to determine the result and declare the same, with some disinterested and reliable means of ascertaining such fact that it was provided that the Secretary of State should prepare such certificate. The purpose *753 of this certificate is not in anjr way made to favor or injure the candidacy of any town, but to aid those whose duty it is to determine and declare the result of such election by ascertaining for him a fact that might be difficult to ascertain otherwise. The Secretary of State is not required to make and furnish the certificate until the same becomes necessary to the Governor to ascertain and declare the will of the electors. The certificate in this case may never become necessary; for, although the city of New-kirk be not within six miles of the geographical center, if it receives at the coming election more than 50 per cent, of the votes cast, such certificate would be unnecessary; and likewise, if said city be within six miles of the center and the city of Blackwell receives more than 60 per cent, of the votes cast, it would be unnecessary. It is not shown that such certificate has yet become necessary to the Governor for whose benefit and guidance it is primarily intended, or that he has requested same. It is not the duty of the Secretary now, and we cannot say that it will ever be his duty, ito act. The courts will not by mandamus compel an officer to perform an anticipated duty which he may never be obligated under the law to perform. Shortt on Information, 272; State ex rel. Kelley v. Bonnell, 119 Ind. 494, 21 N. E. 1101; Board of Commissioners of Public School of Allegany County v. County Commissioners of Allegany County, 20 Md. 449. The fact that the Secretary of State has voluntarily heretofore prepared two certificates locating the geographical center of Kay county, the first of which he became convinced was not correct, and the last of which plaintiff contends is incorrect, affords no legal reason that has been brought to our attention that he should now be required by mandamus to do that which the law does not and may never require him to do. If it ever becomes the duty of the Secretary of State to prepare a certificate as provided by said section of the Constitution, the presumption is he will faithfully discharge that duty. If he then has doubts as to what his duties under the law are, he has at his command the Vol. 22 — 48 *754 advice and counsel of the Attorney General whose duty it is to advise him. This court cannot presume in advance of the time the law imposes upon him a duty to be performed that, when the time comes, he will misinterpret the law and refuse to act, or acting, perform that duty in such an erroneous way that it will amount to no performance under the law, and this court will not use the writ of mandamus as a means of becoming the legal adviser of the different departments of the government as to what their duties are. As to the other propositions presented, to wit, whether the Chiloeco Indian Industrial School reservation is in Kay county, and whether the duty of the Secretary of State to' ascertain the geographical center of a county and to make his certificate showing the same and ascertain the distance by measurement from the center to the nearest corporate limits of the temporary county seat is such a duty as the court will by mandamus compel him in the discharge thereof to exclude from’ his consideration certain territory, the court at this time expresses no opinion. For the reasons already assigned, defendant’s motion to quash should be sustained. All the Justices concur.