dissenting. 1. The petition as amended set forth *412a cause of action, and the court properly overruled the demurrer. In 1922 an election was held in Calhoun County, upon the question of the removal of the county-site from Morgan to Arlington, and resulted in favor of such removal. On July 27, 1923, the legislature passed an act to remove the county-site of that county from Morgan to Arlington. Since the passage of said act the county commissioners have not erected a court-house at the new county-site. The county is without a court-house. The county commissioners have made no adequate provision for buildings in which the courts of the county can be held, where the public offices can be located, and in which the public records can be stored and safeguarded. This state of affairs existed for more than two and a half years after the legislature had passed the act for the removal of the county-site, and for more than four years after the election had been held upon the question of the removal of the county-site from Morgan to Arlington. The buildings of a county are to be erected and kept in order and repaired at the expense of the county, under the direction of the ordinary, who is authorized to make all necessary contracts for that purpose. Civil Code (1910), § 399. County commissioners, with power to levy taxes, have and can exercise the power conferred under this section of the Code upon the ordinary, when such officers are authorized to levy taxes. Dunn v. O'Neill, 144 Ga. 823 (88 S. E. 190). In Matthews v. Hussey, 148 Ga. 526 (97 S. E. 437), it was held that the board of county commissioners with jurisdiction over county matters and county finances was authorized to contract for the building of a county court-house under the above section of the Code. The county commissioners of Calhoun County are invested with the power to levy taxes in that county. Acts 1877, p. 248; Acts 1908, p. 277. It is the duty of the ordinaries to erect or repair, when necessary, their respective court-houses and jails and all other county buildings. Civil Code (1910), § 400. This section was codified from the act of Feb. 21, 1796 (Cobb’s Digest, 182), which declared that “the justices of the inferior courts of every county within this State, in their respective counties, shall c&use to be erected and kept in good repair (or where the same shall be already built), shall maintain and keep in good repair, at the charge of such county, one good and convenient court-house of stone, brick, or timber, and one- sufficient jail.” This act sheds light upon -the *413above construction of these sections of the Code. When control of county matters is vested in county commissioners, and they are authorized to levy taxes, this duty rests upon them.
All official duties shall be faithfully performed, and the writ of mandamus may issue to compel the due performance of such duties, if there be no other specific legal remedy. Civil Code (1910), § 5440; Harrell v. Williams, 154 Ga. 632 (115 S. E. 97); Bryant v. Board of Education of Colquitt County, 156 Ga. 688 (119 S. E. 601). In Polk v. James, 68 Ga. 128, it was said: “The duty assigned to these commissioners was one in which the public was interested; it involved the laying out of town lots, their sale, the collection of the money for the same, the building of a court-house and jail, the payment of the funds collected to the builders thereof; and our judgment is that there is no other specific legal remedy for their failure to discharge this statutory dutjq and that mandamus lies to enforce it. 4 Ga. 26, 116; 5 Ib. 522; 12 Ib. 170; 26 Ib. 676.” In Board of Commissioners of Jasper County v. Persons, 155 Ga. 277 (116 S. E. 538), it was held that mandamus would lie' against county commissioners to require them to perform their official duty in making the jail safe and sanitary, and to put it into a condition which would not jeopardize the lives or health of the prisoners. The petition in this ease alleges the failure of these county commissioners to discharge the public duty resting upon them to erect a court-house for the county at the new county-site. This duty is statutory and mandatory, as will more fully appear when we come to consider the discretion vested in these officers in the matter of erecting this court-house. As we have seen above, mandamus is the proper remedy to stop official inaction and to require the performance of an official duty due to the public.
2. It is insisted by counsel for the county commissioners, that they are vested with a discretion as to the time when they will erect a court-house at the new county-site, that their discretion in this matter should not be interfered with unless they have abused the same, and that the petition sets out no facts to show any abuse of the discretion vested in them, for which reason the petition set forth no cause of action; and that the court erred in making the mandamus absolute. When a county-site is removed by public vote and legislative enactment, what discretion has the ordinary, or the county commissioners in case they have control of county *414affairs, as to the time when they will start to erect a court-house at the new county-site? Can they indefinitely postpone the building of a court-house at such site? As we have seen, it is the duty of these officers to erect or repair, when necessary, the court-house and jail, and all other county buildings. The statute making it the duty of these officers to erect a court-house at the county-site, when necessary, is mandatory, and not wholly discretionary. Where the mandatory duty is imposed by statute upon officers to erect public buildings, or to keep them in repair, they may be compelled to perform these duties by mandamus. Polk v. James, supra; Board of Commissioners of Jasper County v. Persons, supra; People v. LaSalle County, 84 Ill. 303 (25 Am. R. 461); People v. Board of Suprs., 294 Ill. 579 (128 N. E. 645); 38 C. J. 756, § 385. Ordinarily the writ of mandamus is a remedy for official inaction. It is the means of putting public officers in motion. City of Atlanta v. Wright, 119 Ga. 207 (45 S. E. 994). So an officer who is vested with a discretionary power may, in a proper case, be compelled by mandamus to exercise such discretion. Wood v. Board of Education, 137 Ga. 808 (74 S. E. 540). While mandamus does not lie '“to a public officer who has an absolute discretion to act or not, unless there is a gross abuse of such discretion,” this remedy “is not confined to the enforcement of mere ministerial duties.” Civil Code (1910), § 5441; Wood v. Board of Education, supra. But their discretion as to the character and style of building to be erected, or the method of repairs, will not be interfered with or controlled by mandamus. State v. Baker County, 22 Fla. 29; People v. LaSalle County, supra; Broaddus v. Essex County, 99 Va. 370 (38 S. E. 177); People v. Board of Suprs., supra. So I am of the opinion that it is the mandatory duty of the ordinary or the county commissioners, as the case may be, when the removal of a county-site has been legally effected, to build a court-house at the new county-site, and that they are not vested with a discretion to build or not to build as they may see fit. If the county-site is removed, such officer or officers should proceed with reasonable dispatch to erect a court-house at the new county-site. TJpon their failure to do so, mandamus is the remedy to compel them-to discharge this public duty. ■
There is nothing to the contrary of the above holding in Commissioners v. Porter Manufacturing Co., 103 Ga. 613, and in *415Anderson v. Newton, 123 Ga. 512 (supra), when considered in view of the facts and questions of law involved in those cases. In the case first cited, Justice Cobb, who delivered the opinion of the court, said: “There is not, and never has been, any general law of this State undertaking to'determine when public buildings in the various counties shall be erected, and what character of buildings are to be built, or what their cost shall be.” He clearly overlooked the act of 1796. He further said:. “The discretion vested in the county authorities must ,be, from the nature of the case, a broad one; and therefore the reviewing power of the judge of the superior court must be exercised with caution, and no interference had unless it is clear and manifest that the county authorities are abusing the discretion vested in them by law.” In that case the county commissioners had levied a tax to build a new court-house. Clearly, when the county already has a court-house it may become necessary to erect a new one. In such a case the proper county authorities are to pass upon the necessity and expediency of building the new court-house; and in determining this question a broad discretion is vested in the county authorities having the affairs of the county in their charge and control. The question when the- county authorities should build a court-house, if the county had none at the county-site, was not involved in that case, and was not up for decision. Hnder our law the proper county authorities must build a court-house whenever it is necessary, and it is unquestionable that when a county has no court-house the necessity exists for the erection of one. In that case the sole question for decision was whether the county commissioners had abused their discretion in levying a tax for the building of a new courthouse. In Anderson v. Newton it was held: “County commissioners have a broad discretion in passing upon the necessity of erecting suitable buildings for county purposes and selecting an appropriate site therefor; and the reviewing power of the judge of the superior court should be exercised with caution, and no interference had unless it be manifest that the county authorities are abusing the discretion with which they are vested, or that the tax which they propose to levy to meet the cost of construction is exorbitant and will therefore impose an unauthorized hardship upon the taxpayer.” Justice Evans, who delivered the opinion of the court, quoted with approval the language of Justice Cobb in *416Commissioners v. Porter Manufacturing Co., above set out. In that case the proceeding was brought to enjoin the county commissioners of Morgan County from erecting a new court-house; and the sole question involved was whether these officers had abused their discretion in determining to build a new court-house. This court properly held that their discretion in this matter should not be interfered with ,by the judge of the superior court, unless it was abused. In the cases cited and like cases the county-site had not been removed by popular vote and legislative enactment.
3. In the petition in this case the plaintiffs alleged that the County of Calhoun was without a court-house, and that no adequate provisión had been made for the holding of courts in the county. In their answer the defendants set up that suitable provision had been made for the holding of all of the courts of the county for the year 1926, that a fireproof vault had been constructed for preserving the records and books of the county, and that suitable offices had been provided for all of the county officers during that year. In these circumstances the defendants insist that an issue of fact was thus raised by the answer of the defendants, which should have been submitted to a jury for solution; and that the trial judge erred in not submitting this issue to a jury, and in making the mandamus absolute. . Whether the judge erred in not submitting this issue to the jury depends upon the proper answer to the question whether the defendants would be excused from building a new court-house by reason of the fact that they had made suitable provision for the holding of courts in other buildings or place at the new county-site. We have seen that the duty of these officers to erect a court-house is mandatory, and not discretionary. They can not substitute for the performance of this duty the making of other suitable provisions for the holding of the courts and for the accommodation of the public officers and the public records at other buildings at the new county-site. The making of such provisions does not excuse them from performing this public duty and from building a court-house at Arlington. Under our statute it is their duty to build a court-house at the new county-site, and not to make other provisions in lieu thereof.
4. But it is insisted by the defendants that the petition as amended alleges that a demand had been made upon them for the erection of a court-house at Arlington, • that in their answer they *417denied this allegation, that thus an issue of fact was raised which should have been submitted to a jury, and that for this reason the trial judge erred in making the mandamus absolute. The petition as amended does make such allegation. In their answer the defendants deny this allegation. Thus the issue of demand vel non was raised by the answer of the defendants. But a formal demand is not always necessary "in order to entitle parties to a mandamus absolute. If the conduct and action of officials is equivalent to a refusal to perform a public duty imposed upon them by law, it is not necessary to go through with the useless formality of demanding its performance. Anything showing that the defendants do not intend to perform their duty in this matter is sufficient to warrant the issuance of a mandamus absolute. Coffee v. Ragsdale, 112 Ga. 705, 710 (37 S. E. 968); Southern Railway Co. v. Atlanta Stove Works, 128 Ga. 207, 221 (57 S. E. 429). Where facts appear which substantially amount to a refusal, no demand is ■ necessary. Where the conduct of the respondents is such that it can be conclusively implied therefrom that they would have refused to comply with the demand, such demand is unnecessary. In State v. Board of Hudson County, 35 N. J. L. 269, 278, it was said: “The only remaining question is as to the demand to be admitted. It is clear, from the official action of the board, that they did not intend to admit the relators till a decision was made of their right. Any formal demand was unnecessary, for the facts substantially amounted to a refusal.” In Attorney-General v. Boston, 123 Mass. 460, 477, it was ruled: “But where a municipal corporation or board has distinctly manifested its intention not to perform a definite public duty clearly required of it by law, no demand is necessary before applying for the writ” of mandamus. A demand is unnecessary where the court is convinced that it would be unavailing. Hilton v. Grand Rapids, 112 Mich. 500 (70 N. W. 1043). A demand is unnecessary where it is evident that the respondents would refuse to comply with the demand if one were made. Austin v. Cahill, 99 Tex. 172 (88 S. W. 542); 38 C. J. 694, § 266. It is clear from the action and conduct of the respondents that they would not have complied with the demand of the plaintiifs for the building of this court-house if one had been made, as alleged by them in their petition. Furthermore, where the duty sought to be enforced is of a public nature, affecting the people at large, and *418there is no one specially- empowered to demand performance, no demand is necessary as a condition precedent to the issuing of a writ of mandamus to compel performance. 38 C. J. 576, § 50, note 28, and cit. In these circumstances the law requiring performance of the duty stands as a continuing demand. State v. Curtis, 210 Ala. 1 (97 So. 291); Robertson v. Derrick, 113 Ark. 40 (166 S. W. 936); People v. Board of Suprs., 223 Ill. 187 (79 N. E. 123); State v. Weld, 39 Minn. 426 (40 N. W. 561).
5. The defendants further set up in their answer, that, since the removal of the county-site from Morgan to Arlington by public vote and the act of the legislature, a petition had been circulated in the county, and signed by the qualified voters thereof, for the removal of the county-site from Arlington; that upon information and belief said petition was signed by two thirds of the qualified voters of the county; that said petition would be presented to the ordinary for action thereon as soon as the five-year period from the time of the election which resulted in the removal of the county-site from Morgan to Arlington had elapsed; and that for this reason they did not think it fair and just to the county, and to those persons who had tendered a fund for the building of the courthouse at Arlington, to build the court-house at Arlington until the question of the removal of the court-house from that place could be settled by a popular vote. Did this fact furnish a good defense to the mandamus proceeding ? I do not think so. If the existence of such a petition furnished a sufficient reason for the county authorities’ refusal to build a court-house after the county-site had been removed in the manner provided by our law, then no courthouse would ever be built in a county where the county-site had been removed. The refusal of the county authorities to build a court-house for this reason would be tantamount to a veto of the election and the act of the legislature by which the county-site was changed. After considerable research we have been unable to find any decision involving the point raised in this case. In the case of State v. County Court, 47 W. Va. 672 (35 S. E. 959), the Supreme Court of West Virginia held that “A county court will not be compelled by mandamus to build a new court-house pending a proceeding to remove the county-seat.” The question there involved was different from the one involved in the instant case. In the case cited the county already had a court-house, and *419the proceeding for mandamus was brought to compel the county court to build a new court-house. By reason of the pendency of the petition for the removal of the court-house, the Supreme Court of West Virginia held that the pendency of the proceeding to remove the court-house furnished a sufficient reason to refuse the mandamus until the question of removal was settled. The situation in the case under consideration was different. The County of Calhoun has no court-house. It has been without one since 1923, at least. It will never have one if the mere circulation and signing of a petition by a sufficient number of voters to authorize an election upon the subject of removal is a good ground for not building a court-house at the new site. The existence of such petition furnishes no valid reason for the failure of the defendants to build a court-house at Arlington, as required by law.
6. So I am of the opinion that the trial judge did not err in overruling the demurrer to the petition, in striking paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 in the answer of the de-. fendants, setting up the above excuses for not building a courthouse at Arlington, and in making the mandamus absolute. In my opinion the facts show abuse of .official discretion^ Mr. Presiding Justice Beck authorizes me to say that he concurs in this dissent.