The opinion
Mr. Justice Schaefer, dissenting:
I concur in the opinion of the court insofar as it holds that the petition for mandamus as initially filed did not state a case within the original jurisdiction of this court, and insofar as it rejects, sub silentio, the argument of the relators that this court should refuse “to be fettered from originally hearing the case by the archaisms of common law mandamus.” But in my opinion the deficiencies of the original petition for mandamus were not remedied by the amendment, and the case is therefore not a proper one for the exercise of the original jurisdiction of this court.
The constitution confers original jurisdiction on this court in these terms: “The Supreme Court may exercise original jurisdiction in cases relating to the revenue, mandamus, prohibition and habeas corpus, such original jurisdiction as may be necessary to the complete determination of any cause on review, and only appellate jurisdiction in all other cases.” (Article VI, sec. 5.) This court has original jurisdiction of the present case only if it is a mandamus action.
“The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty which one charged with the duty has refused to perform. The writ can only be issued to compel a party to act when it was his duty to act without it. It confers upon the party against whom it may be issued no new authority, and from its very nature can confer none. (People v. Gilmer, 5 Gilm. 242 ; City of Ottawa v. People, 48 Ill. 233 ; People v. Cline, 63 id. 394.)” People ex rel. Bruce v. Dunne, 258 Ill. 441, 446-47 .
Mandamus lies to enforce an existing duty, not to create a nonexistent one. The section of American Jurisprudence relied upon by the majority does not deal at all with the problem that is now before the court. The distinction is between the use of the writ to enforce a duty that is prospective in the sense that it is to be performed in the future, which is what the section relied upon is concerned with, and the use of the writ to create a duty that never existed, which is what the opinion of the court does. The statement in American Jurisprudence is as follows:
“§ 79. Prospective or Anticipated Violation of Duty— Mandamus is used to compel the performance of a present existing duty as to which there has been an actual default, and it is not granted to take effect prospectively. The writ, that is, will not ordinarily be awarded to compel the performance of an act unless the act is one which is actually due from the respondent at the time of the application. Until the time arrives when the duty should be performed, there is no default of duty; and mere threats not to perform the duty will not, as a rule, take the place of default. So, it has been stated that mandamus will not be issued in anticipation of supposed omission of duty, however strong the presumption may be that the person whom it is sought to coerce by the writ will refuse to perform his duty when the proper time arrives. This, however, is a general rule merely and does not prevent the use of mandamus to control the performance of prospective duties where the exigencies of the case demand it. If the law imposing the duty sought to be enforced is clear and unambiguous and the facts undisputed, mandamus will sometimes be granted where the respondent officer clearly manifests an intention not to perform the act in question. It has also been held that it cannot be said in a mandamus proceeding to compel a railroad to perform its duty to sprinkle certain streets of a city that the question is a moot one because the proceeding is heard at a time during certain months when such sprinkling is not required, upon the ground that when next required the company may do its duty, where it appears that it has refused to do so for over five years. So, as regards the levy of a tax, it has been held that mandamus may issue to coerce the public officers as to their future action, although the time for the levy has not arrived, when it clearly appears from their past conduct that they will disregard their duty in this respect.” 34 Am. Jur., Mandamus, sec. 79, p. 868.
Of the decisions of this court relied upon by the majority, People ex rel. Giannis v. Carpentier, 30 Ill.2d 24 , did not involve the exercise of the original jurisdiction of this court. The others, and particularly People ex rel. Nachman v. Carpentier, 30 Ill.2d 475 , dealt with the present assertion of a duty to be performed b)^ election officials in the future, and in that sense they did not involve an existing duty. But in each case there was no question that when the election day arrived it would be the duty of the respondents to handle that aspect of the election proceeding which was in dispute. Each case concerned the nature of the official’s duty rather than its existence. The question in several of the cases, for example, was whether the respondents were required to conduct the 1964 election at large or according to the 1955 apportionment. But in all of them the duty to conduct the election existed before the decision of this court was rendered, and in none of them did the jurisdiction of this court depend upon the creation of the duty.
The statutes from which the court distills the duty it creates impose only custodial and ministerial duties upon the Secretary of State. Section 3 of the act of 1874 concerning the duties of the Secretary of State provides: “All public acts, laws and resolutions passed by the General Assembly of this state, shall be carefully deposited in the office of the Secretary of State, and the Secretary of State is charged with the safety of said office, and all laws, acts, resolutions, bonds, papers and records which now are or shall hereafter be deposited therein.” (Ill. Rev. Stat. 1963, chap. 124, par. 3.) Section 5 of the same act provides: “It shall be the duty of the Secretary of State — * * * 6. To give any person requiring the same paying the lawful fees therefor, a copy of any law, act, resolution, record or paper in his office, and attach thereto his certificate, under the seal of the state.” 111. Rev. Stat. 1963, chap. 124, par. 5.
The statutory duty to furnish upon request a certified copy of “any law, act, resolution, record or paper in his office” upon payment of the lawful fee therefor does not embrace a legal duty to pass upon the legality or validity of any of those documents.
Although the opinion of the court is somewhat equivocal, it apparently rejects the contention of the relators that these statutes make it the duty of the Secretary of State, who is not required to be a lawyer, to determine the constitutionality of legislation and to distribute only those laws that he finds constitutional. I should have thought that if the legislature had passed a statute that expressly made it the duty of the Secretary of State to determine the constitutionality of legislation and to distribute only those laws that he found constitutional, this court would, without doubt, have declared the statute invalid as a violation of the constitutional provision concerning the separation of governmental powers. See State ex rel. Martin v. Zimmerman (1939) 233 Wis. 16 , 288 N.W. 454 .
The theory that the majority advances sua sponte is equally unsound. The statute which everyone agrees is unconstitutional in the present case is not of course the only statute that has been, or will be, held invalid by this court. Unless the duty that the court creates is to be regarded as for some reason applicable only in the present case, it will be the duty of the Secretary of State to render legal advice to all persons seeking copies of the laws in all cases in which any court has held a statute wholly or partially invalid. Clerks of cities and villages, and other officials of local governments, have the same custodial duties and the same duties to distribute copies of ordinances and other official documents. The duty created by the court in order to expand its original jurisdiction in this case would apply to them as well as to the Secretary of State, and they, too, will be required not only to advise as to the effect of decisions of this court, but of the circuit court and all federal courts as well. The legislature has not thought it wise or necessary to impose these duties, and their imposition by this court seems to me to be as much a violation of separation of powers as would be the duty which the relator by amendment to his petition sought to impose upon the Secretary of State.