Theo. S. Coffee and Tipton Coffee, as the proprietors and publishers of the “DeKalb Standard,” a weekly newspaper of DeKalb county, applied for a writ of mandamus against the ordinary of DeKalb county, to compel him to publish in their paper ah of his legal advertisements and citations, both as probate judge and as the person having charge of county matters. They made the following allegations: Prior to May, 1900, the sheriff of the county had published his legal advertisements in the DeKalb New Era, another newspaper published in the county. In May, 1900, he decided to change from the New Era to the Standard. The sheriff carried the notice of the contemplated change to the New Era for publication in accordance with the requirements of section 5460 of the Civil Code, .but the proprietor .of the New Era refused to publish the notice of the change. Thereupon the sheriff published the notice in the Atlanta Journal, a newspaper in an adjoining county, and in the Standard. From that time, he published in the latter paper all of his legal advertisements. After the sheriff had made this change, -the proprietors of the Standard applied to the ordinary of the county and demanded of him that he publish in the Standard all of his legal advertisements, not only those emanating from the court of ordinary, but also, inasmuch as the ordinary had control of county matters, those relating to such matters. The ordinary absolutely refused to comply with the demand, and continued to publish
1. The question presented in this case has vexed county officers for a very long time. We have, ourselves encountered no little difficulty in coming to a conclusion upon it, on account of the vague and indefinite expressions used in some of the sections of the code, usually relied upon by ordinaries when they are determined to publish their advertisements in a paper other than that selected by the sheriff. But, after a careful examination of all the sections relating to this matter, we have concluded that when the sheriff has selected a newspaper in which to publish his legal advertisements, such paper be- ' comes the legal medium of the advertisements of the county and the official organ in which should be published the legal advertisements of all the officers of the county. "We shall undertake to show that this is correct, and if it is, section 5460 of the Civil Code, properly construed, means that when the sheriff does make a change in the advertising medium, he shall give notice thereof in the manner
When we come to look at the duties of the ordinary as a prohate judge, we find that section 3394 of the Civil Code requires him to issue citation and give notice of the application for letters of administration" in the gazette in which the county advertisements are usually published.” Where an administrator applies for leave to sell land of the estate of the decedent, notice of the application shall be published “in the gazétte in which the county advertisements are published.” Civil Code; § 3450. A foreign executor, administrator, or guardian can not transfer stock, etc., until he has given due notice “in the paper in which the sheriff’s notices are published.” § 3525. When an administrator is required to make deeds under bonds for title in certain cases, notice must be given “ by publication in the gazette publishing the legal advertisements of the county.” Civil Code, § 3441, as amended by the act of November 11, 1899 (Acts 1899, p. 34). When a guardian wishes to sell the estate of the ward for reinvestment, notice of his intention to apply for leave to do so must be published “in the newspaper in which county advertisements are usually published in the county.” Civil Code, § 2546. The newspaper in which the sheriff advertises being the medium or official organ for county advertisements, these sections of the code manifestly mean that the notices required therein shall be published in that paper. And it is the duty of the ordinary, both as probate judge and as the person having control of county matters, to insert his advertisements in the same paper. These sections of the code seem to indicate an intention on the part of the legislature to have all the official advertisements of the county made in the same paper, so that the people may know where to look for information in regard to the official business of the county. If the law were otherwise, then in counties, such as Fulton, which have a large number of newspapers, and, indeed, in any county having more than one, people interested in county matters would he put to considerable trouble and expense. They could not know in what paper to look for county advertisements, and
2. The paper selected by the sheriff being the official advertising organ of the county, when the proprietors of that paper applied to the ordinary, both as probate judge and as the person having control of county matters, to publish his advertisements in their paper, it was his duty to comply with their application. When they applied to the court for a writ of mandamus to compel him to comply with his legal duty, and made the allegations above set out, the court erred in dismissing the application. A demand and an absolute refusal were clearly alleged, and also that the ordinary continued to advertise in the New Era, the former medium of advertising in the county. The refusal of the ordinary was a refusal to perform a ministerial act which the law required him to perform, and which he could be compelled to perform by mandamus. The relators set up a special interest in the matter, and set out the amount of such interest by showing what amount would probably have to be paid to them for publishing at the legal rates the advertisements of the ordinary. They thus showed a special interest in the advertisements of the ordinary in his capacity as judge of probate and also in his capacity as the person having charge of county matters. Savannah & Ogeechee Canal Co. v. Shuman, 91 Ga. 400. We think these allegations were sufficient, and that it was not necessary for them to specify any particular advertisements which the ordinary had refused to publish in their paper. It was useless to do this, when it appeared that he absolutely refused their demand and continued to publish his legal advertisements in the other paper. “The law never demands a vain thing, and when the conduct and action of the officer is equivalent to a refusal to perform the duty desired, it is not necessary to go through the useless formality of demanding its performance. Anything showing that the defendant'does not intend to perform the duty is sufficient to warrant the issue of a mandamus.” Merrill, Maud. § 225. See also 14 Am. & Eng. Ene. L. 107. Had the refusal of the ordinary been conditional or equivocal, — had he simply stated that
3. And this is true although there may be no specification of any particular matter or particular advertisement which he refused to publish in the relators’ paper. He refused, generally, to comply in any respect. It may be said that the application for mandamus covered more than the ordinary was authorized or required to comply with, and that it may turn out upon the hearing that some of the advertising asked for by the relators is not such as the ordinary has to publish in their paper; and that, therefore, not being entitled to all they ask, the relators can get nothing. We admit that this was the rule in England, and that it has been adopted in some of the States of this country, but several States have repudiated it and held that the fact that the relator demands more than his right is no good reason for refusing to give him that to which he is entitled. We think this latter the proper rule, and that, under the rules of pleading and practice in this State, it must be the rule here. The writ of mandamus in this State is a very different thing from the old writ of mandamus in England. Merrill, Mand. § 291. After considering carefully the application for mandamus and the various demurrers thereto, we are of opinion that the court below erred in dismissing the application.
Judgment reversed.