dissenting. 1. The majority of the court, in the third lieadnote, hold that the petition addressed to the ordinary “was not such a contest of the election as is provided and required” under the law. Only one defect in the petition addressed to the ordinary is pointed out, to wit: in the second headnote it is pointed out that the Civil Code (1910), §121 (2), requires five days’ notice in writing to the contestee of the time' and place where the contestant intends to take testimony and the judicial officer before whom the testimony will be taken. The contestee makes no complaint of a failure on the part of the contestant to give due notice. If there had been such failure, it would seem that the contestee, desiring to avail himself of that defense, would have pleaded it. On the contrary he appeared before the ordinary and interposed a general demurrer and filed an answer, without making any mention of a failure to receive due and legal notice. The petition for mandamus alleges, in regard to the petition for contest filed with the ordinary, that “after due service on the said J. Y. Talley the contest came on to be heard at the place and time set as prescribed by law,” and that the said ordinary refused to hear said contest, “solely upon the ground that the mayor and council' of the City of Nashville had not been served with notice of petitioner’s intention to contest said election.” The statute does not require notice on the mayor and council. The order of the ordinary shows that he dismissed the petition for grounds other than lack of service. If in fact a copy of the petition was served on the contestee, of course this copy gave him full notice of the time and place of the hearing, as provided in the Civil Code (1910), § 121 (2). Moreover, counsel for the contestee does not mention, in his brief before this court, lack of due and legal notice. It would seem, therefore, that the ruling now made in regard to lack of proper notice is without sufficient basis to authorize it. On the contrary it would seem reasonable that there must have been full compliance with such requirement, and therefore no issue on the question. The eases cited in the majority ruling have reference to § 1546 of volume 1 of the Code of 1895 —local-option statutes. The notice there required is notice to the ordinary of a contest proceeding in the superior court. In such a case it was held that where the petition to the superior court was served on the ordinary, this was sufficient compliance with the *168statutory requirement as to notice, Drake v. Drewry, 112 Ga. 308, 310 (37 S. E. 432).
2. The majority rule that the petition addressed to the ordinary was not sufficient to constitute a contest under the Civil Code (1910), § 125; and as authority the following cases are cited: Collins v. Huff, 63 Ga. 207; Jossey v. Speer, 107 Ga. 828; Paulk v. Lee, 117 Ga. 6. Those cases are all different from the case now before us. In dealing with those cases this court passed upon the sufficiency of petitions addressed to the superior court, a court of general jurisdiction, and not with petitions addressed to the ordi^ nary, a court of limited jurisdiction. Moreover, the contests involved were not based upon the Civil Code (1910), § 125, and the provisions of law were different. As an illustration of the difference, in the case of Paulk v. Lee, which involved a contest on the local-option law, the petition to the superior court alleged in general terms'that a large number of illegal votes were cast, without giving the name of a single person. This allegation was clearly too general; and it was so ruled. In the case now before us the petition to. the ordinary gives the name of each and every person alleged to have voted illegally, and the petition also alleges that when all illegal votes have been excluded petitioner will be legally and duly elected and entitled to the office.
3. Plaintiff in error complains that the judge of the superior court erred in rendering a judgment for mandamus absolute, thus passing upon the merits of the case, because there was an answer filed “making an issue of fact.” The whole case, however, turns upon the order of the ordinary dismissing the petition for a contest on the ground that “it is, after consideration, adjudged that all legal requirements do not affirmatively appear in said petition as amended, and said petition as amended is hereby dismissed. It is so ordered.” This action of the court was the exact equivalent of sustaining a general demurrer to the petition. If this judgment of the ordinary was authorized by law, then. it necessarily follows that the judge of the superior court erred in rendering his judgment. On the other hand, if the judgment of the ordinary sustaining the general demurrer to the petition for a contest was unauthorized by law, then the judge of the superior court could do nothing except render a judgment absolute, requiring the ordinary to proceed to a hearing of the contest on its merits.
*1694. The main question, after all, is whether the ordinary was authorized by law to dismiss the petition for the contest, or whether he should have proceeded to hear the contest on the merits. I differ from my learned colleagues on this question, with great reluctance and respect; but the principle involved is so important that a dissent seems justifiable. The power of the ordinary as provided in the Civil Code (1910), § 125, is not that of a court of general jurisdiction. The authority of the ordinary is limited, and no authority has been cited giving the ordinary the.power to dismiss the petition instead of hearing it on its merits. “Whenever any contest arises over an election of any constable, municipal officers, or other officers not hereinbefore provided for, the same shall be filed with, heard, and determined by the ordinary of the county wherein such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor.” In cases of the latter character section 123 applies, and is as follows: “Illegal votes, by the method aforesaid and otherwise, may be proven by both parties; and if such are proven on both sides, one.shall stand against another, and he is elected who has the greatest number of legal votes. All are considered legal not proven to be illegal.” In Harris v. Sheffield, 128 Ga. 299 (57 S. E. 305), the second headnote is as follows: “Performance of a political function by a court is not inherently judicial, and whatever jurisdiction over matters of a political nature with which courts may be constitutionally vested is derived from a statute.” And the third headnote is as follows: “The Political Code [1895], § 1546, conferring on the superior court jurisdiction in cases of contest of a local-option election, limits that jurisdiction to matters involved in the ascertainment of the true result of the election.” “Where a contest is filed before the ordinary of the county under the provisions of § 125 of the Civil Code, relating to contested elections, the ordinary has no other jurisdiction than, after examining and counting the ballots as provided in preceding sections of the code relating to contested elections and taking evidence, to declare whether the contestant or the contestee is elected to the office in question, and has no jurisdiction to entertain the question as to whether the election itself, out of which the contest grerv, was void; and if he exceeds the jurisdiction and declares the election *170illegal, Ms judgment is void.” Walton v. Booth, 151 Ga. 452. In the opinion, referring to code section 125, it was said: “The ordinary had no jurisdiction, under the provisions of the statute quoted, other than to determine, upon a contest raised by a party who was himself a candidate at the election, whether the person filing the contest or the one who was declared elected received the greater number of legal votes, and, in case the contestant received it, to declare him duly elected. A contest under this section raises merely the issue between the contestant and the contestee as to which of the two has the right to the office. This section is in the chapter relating to contested elections; and the duty of the ordinary in such a contested election is illustrated by the provisions of § 121 of the Civil Code, relating to proceedings in contested elections, and the subsections following, relating to the examination of witnesses and the taking of testimony. And when the ordinary, instead of taking the testimony as contemplated by the sections and subsections referred to, declared the election void upon hearing evidence, he exceeded his jurisdiction, and the judgment rendered was void. The ordinary, so far as relates to elections of the officers named in section 125 of the Civil Code, performs certain statutory duties; and it is doubtful whether his judgment in the contest could be reviewed by certiorari or otherwise. It was the purpose of the legislature, in enacting the statute embraced in section 125, to confer merely a limited jurisdiction upon the ordinary, — a jurisdiction to decide between two persons who claim an office and who raise a question as to their respective rights in the way pointed out. Simpson v. Rimes, 141 Ga. 822.” “Where the power to decide a contest is lodged with a judicial officer, it has been held that the function is political, and not judicial, and that no writ of error will lie from his decision. Carter v. Janes, 96 Ga. 280 [23 S. E. 201]; Tupper v. Dart, 104 Ga. 179 [30 S. E. 624].” Harris v. Sheffield, supra. This is a sufficient reason why the legislature intended that the ordinary should hear the contest on its merits and should not have the power to dismiss the proceedings. My conclusion is that the jurisdiction of the ordinary was restricted solely to the authority delegated by the General Assembly, as prescribed in the code sections dealt with above, and that his only authority was to hear the contest on its merits, to ascertain what votes were legally cast, *171who received a majority of the legal votes, and to declare such person the duly elected mayor of Nashville. Mandamus will issue to require the ordinary to act in accordance with the statute, but will not otherwise control ox interfere with his legal discretion. Richmond County v. Steed, 150 Ga. 229, 232 (103 S. E. 253). “The broad statement that mandamus will not issue to compel the performance of a discretionary duty is misleading. It is true that where an officer has discretion whether to act or not, mandamus will not compel the act. But the issue of mandamus is not always incompatible with a duty involving discretion, as is illustrated by the following classes of cases: (1) Where there is discretion to choose between different courses of action, mandamus can require the choice to be made. (2) Where, in such a case, the choice is exercised arbitrarily, mandamus will correct the abuse of discretion. French v. Jones, 191 Mass. 522, 78 N. E. 118. See 15 Harvard Law Rev. 403. (3) Where the act is imperative but there is discretion as to the method of doing it, mandamus will order the act done. People v. Supervisors of Queens County, 142 N. Y. 271, 36 N. E. 1062; People v. Comm’rs of Highways, 158 Ill. 197, 41 N. E. 1105; People v. Board of Supervisors, 294 Ill. 579, 128 N. E. 645.” 37 Harvard Law Review, 777.