(dissenting): In my view the evidence in the case warrants the court in taking up and deciding the disputed questions as to the validity and proper interpretation of the guaranty act. It appears to mé to be a real and not a simulated controversy. The enactment of an important statute is frequently followed by differences of opinion among those directly interested, as to its constitutionality and meaning, and one of the recognized methods of settling these differences is a test suit brought in the name of the state against the officer having charge of its enforcement. Such an action may be amicable without being fictitious, and many actions having a similar basis to .this one as to the character of the controversy have been considered and determined in this court. In this proceeding the attorney-general, representing the public, insisted that the guaranty act applied to the national banks of the state and was not invalid for that reason, while the bank commissioner, who based his rulings on the decisions of the federal officers, announced that he would not admit them to the benefits of the act, and in the case of the Commercial National Bank of Alma he said that his refusal was official. It is true there was no formal demand by a national bank and a specific refusal of such demand, but it is clear that such a demand would have been unavailing. Possibly there would have been stronger reasons to insist on this if a particular bank had brought the action to compel admission than in a case like this, where it is brought by the attorney-general in the name of the state. But in my opinion a situation had arisen which justified an action *85by the state. The bank commissioner had corresponded with most of the national banks of the state, had had direct communications and consultations with fifty or sixty of them, including a conference with the officers and stockholders of a certain bank where its admission to the guaranty fund was the principal subject of discussion. The response of the bank commissioner to all of them was that national banks would not be admitted. A specific demand is not always necessary in order to maintain mandamus. In C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 49 Kan. 399, it was said :
“In a proceeding of mandamus, to compel the performance of a public duty, no formal demand upon the defendants is necessary where their course and conduct manifest a settled purpose not to perform the duty, and where it clearly appears that a formal demand would be useless and unavailing.” (Syllabus.)
So here the settled purpose of the bank commissioner not to admit national banks made it unnecessary for the attorney-general, representing the public, to go through the formality of asking that the Commercial National Bank of Alma or any other national bank should be admitted to the guaranty fund in order to furnish a basis for an action. .
I am authorized to say that Mr. Justice Benson concurs in this dissent.