The law for the election for the relocation of the county seat of Saline county, under which this election was held, was not as broad as the requirements of the constitution authorizing a relocation of county seats. That provision requires that a majority of the voters of the county shall vote for the change. This law only requires the clerk to canvass the votes cast on the question of relocation, and certify the result, without regard to other votes cast at the same election. Beyond this, in that certificate, he is not authorized to go. Therefore, under that law, he can give no certificate which will afford legal evidence that a majority of the voters of the county have voted for the one place or the other. His certificate, therefore, cannot afford legal evidence that the county seat has been changed, under the provisions of the constitution. That must be an open question to be tried in any legal mode, the same as if the law had not authorized him to canvass the vote at all. The statute itself cannot be sustained under the constitution, if we adhere to its literal expressions, for it requires, in order to relocate the county seat, but a majority of the votes cast on the question of relocation, whereas the constitution goes farther, and requires a majority of the voters of the county. The law may be sustained by reading it in the light of the constitution, and construe it as giving effect to the affirmative vote, when such affirmative vote is by a majority of the legal voters of the county. The legislature may have assumed, and doubtless did, that all would vote upon the question, and such is. the practical effect if we count the votes in the negative, which are silent on the subject. In this mode alone can the law be sustained authorizing township organization, which has been in operation in most of the northern counties of the State since the adoption of the constitution. It is a question of no small difficulty to determine in what mode it shall be ascertained who are the voters of the county, so as to determine whether a majority have voted in favor of a relocation.
The same difficulty arises under the law authorizing township organization. This portion of the constitution must receive a practical construction. We understand it to assume—and such, we believe, was the understanding of its framers—that the voters of the county referred to were the voters who should vote at the election authorized by it. If we go beyond this, and inquire whether there were other voters of the county who were detained from the election by absence or sickness, or voluntarily absented themselves from the polls, we should introduce an interminable inquiry, and invite contest in elections of the most harrassing and baneful character, if we did not destroy all of the practical benefits of laws passed under these provisions of the constitution. We hold, therefore, that a majority of the legal votes cast at this election is sufficient to determine the question of a relocation of the county seat. See 1 Sneed R. 692.
As the law itself provided no mode for the determination of this question, it must be left to the courts of law for their adjudication, whenever a dispute arises, and is presented to them in proper form. Of this subject, the courts of equity have undoubted jurisdiction. See case of Horn R. Kneass, 2 Select Equity Cases, by Parsons, 553.
The case before us shows that a bill in equity was filed in due form, and by proper parties, in the Circuit Court of Saline county, for the purpose of settling this very question, which is now pending and undetermined, and in which a temporary injunction has been issued, restraining the present defendant from keeping his office at Harrisburg, to which it is insisted by the relator, that the county seat of Saline county was removed at the election referred to. Admitting that this court has jurisdiction to try the question in this proceeding for a mandamus, we are not bound to do so, nor is it proper that we should do so, when another court has acquired jurisdiction properly, and is proceeding to exercise it, especially when we are asked to compel a party to do a thing from which he is restrained by an injunction issued by a court of competent jurisdiction. We leave the question, therefore, to be settled by that court, which has every facility of purging the poll books, and ascertaining all the facts upon which a correct decision necessarily depends. In the meantime, as there has been, and can be, no other legal mode of determining the result of this question, the county seat must remain unchanged.
The application for a mandamus must be refused.