(concurring) — I agree with the majority when it concludes that mandamus does not properly lie against the Secretary of State on the basis that he is under no duty under our state’s constitution or any statute to perform the duty the petitioners seek to compel him to perform. Because that holding entirely resolves the issue before this court, I take exception to the majority’s extensive foray into an issue that is not before us and which, it concedes, it is not “compelled” to resolve. Majority op. at 382.
The additional question the majority addresses is, in essence, whether the Legislature can be compelled to create a county. The petitioners have not sought to compel the Legislature to create a county or do anything else and, in my view, it is improper for us to render an opinion about what discretion or role the Legislature does or does not have in the area of county formation when that issue is not before us. If and when that issue is properly raised, joined, and briefed, we can resolve the question. In the meantime, we should exercise judicial discretion and avoid issuing what can only be described as an advisory opinion.
Durham, C.J., and Sanders, J., concur with Alexander, J.
Reconsideration denied March 11, 1998.