dissenting. — This proceeding ought to have been dismissed without considering and deciding the questions presented thereby, because, according to the course of law and practice, these questions are not now properly before this court for determination. Neither the writ of mandamus nor injunction can be legally invoked as an indirect method of instructing or advising officers of the executive department as to duties imposed upon them by law, and in what manner they shall perform the same, especially in cases like the one at bar, wherein the officer asserts his intention to perform the duties required when the time arrives for his action. (Gaines v. Thompson, 7 Wall. 347; Arberry v. Beavers, 6 Tex. 457; 55 Am. Dec. 791.) Nor can the consideration of courts be legally invoked to determine a mere dispute raised by an individual with an officer as to what particular public duties the law imposes upon his office for future execution. The facts presented in this case show simply such a dispute, raising a feigned issue for the purpose of drawing from this court, if possible, an authoritative judicial response determining the same, and thereby to instruct and direct the secretary of state in the future performance of his duties on the subject .mentioned. The courts have uniformly refused to entertain and respond to that character of issues, whether sought to be presented by mandamus or injunction. Therefore, in my opinion, this proceeding should have been dismissed with that remark, and without deciding the dispute sought to be presented for determination. The writ of mandamus lies in cases (where there is no other plain, speedy, and adequate remedy) to compel the performance of ministerial acts enjoined upon an officer by law, which acts the proper officer refuses to perform. This proceeding involves no such case. Nor is it even so pretended in the argument thereof by relator’s counsel. The case presented by relator’s petition, in substance, is that the permanent location of the capital or seat of government of *42this state being a question required by law to be submitted to the qualified electors thereof at the next ensuing general election, and the secretary of state being required by law to perform certain official acts in relation to the submission of that question, he must, by careful consideration of the provisions of the law, and perhaps by availing himself of legal counsel, ascertain what acts or duties the law prescribes for him to perform in reference to that subject; that in .view of those conditions it appears relator, a citizen and qualified elector, called upon the secretary of state, and inquired of him how he proposed to discharge said duties. If the secretary of state had replied that he proposed to discharge those duties as the law prescribed it would then have been difficult for relator to have raised any controversy with the secretary upon the subject. In such event relator would have been unable to accomplish the end sought, that is, to raise a dispute with the secretary of state as to what the law requires of him in the premises, and bring that controversy immediately into court for decision, unless relator had applied to the court by way of writ of mandamus to compel the secretary of statB to narrate to relator or his counsel, in detail, all of the acts and things which the law required of him on that subject, as he understood it. But the secretary of state, having informed himself of the duties devolving upon his office in this matter, obligingly pointed out to his interrogator the law governing his action, and the particular acts he must perform in order to fulfill its requirement, as the secretary of state understood it. And according to the decision of the majority of this court the secretary had so carefully considered the various provisions of law on this subject as to be correct in his interpretation of them in ascertaining his duties in the premises. The time had not yet arrived for action by the secretary of state when he was thus interrogated by the relator, but his duties were to be performed in the future. He neither refuse! nor proposed to neglect the performance of any duty in the premises required of him by law, as he had ascertained and understood the requirements of law; but, on the contrary, asserted his purpose to discharge all of these duties at the time and in the manner prescribed. But, as appears, in order to bring a case *43into court, and procure, if possible, a judicial decision, in advance of any action on the part of the secretary of state, either affirming the correctness of the secretary’s interpretation of the laws relating to the submission of said question or pointing out some error therein, relator demanded, as he alleges, that the secretary of state, when the time for action on his part should arrive, shall do otherwise than his counsel, consideration, and judgment had led him to believe the law required of him in discharging his public duties on that subject. In other words, the demand was that the secretary of state should adopt and follow another interpretation of the law, proposed or suggested by the relator; and, upon the secretary declining to comply with such demand, or declining, rather, to promise to adopt and follow the interpretation suggested by relator, who assumed the role of interrogator and counselor of the secretary of state, rélator straightway brings into this court, under the name and style of a mandamus proceeding, the dispute which he had thus raised with the secretary, and seeks from this court a response as to whether relator’s contention is correct, or whether the secretary of state had rightly interpreted the provisions of the law on the subject under discussion* In the presentation of the case relator’s counsel frankly admit that they are quite indifferent as to which way the decision may turn, so that there is a decision of the dispute, carrying the authority and weight of a determination of this tribunal. They wished merely to propound to this court the question which relator has raised with the secretary of state, and receive a response in the form and bearing the weight of a judicial determination by this court as to which of the two possible interpretations of the law must be followed by the executive department of this state in discharging in the future its public duties on that subject; in a case, too, where the particular officer of that department whose duty it is to act has signified his intention and determination to act fully as the law prescribes.
It is needless to do more than state the case, with the circumstances of its production, to show at once the entire lack of a legitimate cause for judicial determination set forth therein. Nor can the form of verbiage, nor the device of *44feigned demand, infuse into it the substance of such a cause. Those devices only give it the mere sound of a proceeding in mandamus. Relator shows no substantial grievance whatever, either public or private, to be redressed, unless it be a mental grievance. His only grievance is that his mind is not quite clear as to whether the secretary’s mind is clear on the subject of his duties in presenting the capital question to the people. The secretary of state shows, in his answer and presentation of his counsel, that he has, with much care and caution, sought out and arrived at a conclusion as to what duties devolve upon his office in this matter. He expresses no doubt about the correctness of his conclusion, and asserts his purpose to discharge those duties fully, unless interfered with by some superior power. Relator hopes the secretary is right, but still he gives this court to understand that there is a doubt in his mind — not exactly a reasonable doubt, which he or his counsel can well explain, or by reason of which they insist with emphasis on another interpretation, yet a vague doubt, accompanied by a slight fear that, if some one in the future should question the action of the secretary of state, it might occasion some inconvenience, haunts the mind of relator, as his counsel inform this court — which doubt and fear can only be dispelled, and relator’s mind set at rest by a decision of this tribunal. Such is the case presented, and nothing more. There is no sanction in practice or precedent to warrant the entertainment and judicial consideration and determination of the question thereby propounded, unless this court propose to institute the practice of solemnly handing down responses to legal propositions which might in the future be involved in some cases. Something on the style of responsa prudentum, in vogue amongst the Roman jurists, but entirely distinguished therefrom, because the responsa prudentum “ was not of the bench, but of the bar”; the opinions of learned jurists, not decisions promulgated by and endowed with the weight of judicial authority. (Maine’s Ancient Law, 32; 1 Kent’s Commentaries, 230.) In the case of Gaines v. Thompson, 7 Wall. 347, Mr. Justice Miller, delivering the unanimous opinion of the court, approvingly quotes from the ease of Commissioner of Patents v. Whitely, 4 Wall. 522, the language of Chief Justice Taney, *45as follows: “Some of the observations of Chief Justice Taney, in delivering the opinion in the former, are so pertinent to the case before us, and state so well the relations of the judicial branch of the government to the officers engaged in the executive branch, that they may well be reproduced here. Speaking of the functions of these officers he says: ‘In general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress under which he is required to act.’ ‘If,’ he says, ‘a suit should come before this court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of the department; and, if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But this judgment, upon the construction of the law, must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the acts of Congress, in order to ascertain the rights of the parties before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise judgment or discretion. Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary exercise of his official duties.The interference of the courts with the performance of the ordinary duties of the executive departments would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given them.' To the same effect are also the cases, United States v. Seaman, 17 How. 225; United States v. Guthrie, 17 How. 284; United States v. Commissioner of Land Office, 5 Wall. 563.” Indeed, the whole opinion of Mr. Justice Miller in that case might be pertinently quoted here as showing that in entertaining and judicially treating the dispute presented in the case at bar this court has departed very far from the judicial province. To the same effect also *46is the bolding of the supreme court of the United States in the case of Decatur v. Paulding, 14 Pet. 497. But, as before observed, I apprehend the controversy presented by relator in this case is so obviously outside of the province of judicial cognizance that it ought to require no citation of authority to establish that suggestion. But the entertainment and decision of this case sets the precedent, and establishes the practice for its kind in this jurisdiction. Therefore, the way is open to call upon the judiciary to decide disputes which individuals may raise with public officers as to their public duties, prescribed by law for future execution, and which the officer in no manner proposes to neglect. But, in order to instruct them, or to obtain a judicial holding, in advance of their action, and in an ex parte proceeding, that the course about to be pursued is correct beyond all future question, let the person so desiring inquire what the officer proposes to do in respect to the subject, and dispuf e the correctness of his view, and demand that he do otherwise, however unfounded. There' you have a case on all fours like the present one for judicial consideration and determination. This fashion of feigned dispute will no doubt be frequently resorted to in this jurisdiction as a convenient method of obtaining judicial decisions before action of the officer is taken, and before cases actually arise, “ to save future inconvenience.” It would apply conveniently to tax levies and sales, to quiet titles, etc., to questions as to issuing of bonds, sale of state lands, elections, and a multitude of other cases wherein officers of the executive department must perform public duties. Such actions will be brought for the purpose of instruction and repose. But, in my opinion, as said in Gaines v. Thompson, 7 Wall. 347, such “interference oí courts with the performance of the ordinary duties of the executive departments would be productive of nothing but mischief.”