dissenting. By the common law no person is entitled to inspect public records, personally or by an agent, or to make copies, abstracts or memoranda therefrom, unless he has such an interest therein as would enable him to maintain or defend an *520action for which the record sought furnished evidence or necessary information; and the interest of the person demanding the inspection must be direct and tangible. The person demanding access to an inspection of public records must not only have a direct, tangible interest in the matter to which they relate, but the inspection must be sought for some specific and legitimate purpose. The'gratification of mere curiosity or for mere speculative purposes will not entitle one to demand the examination of such records. Rex v. Allgood, 7 T. R. 746, 101 Eng. Rep. (Reprint) 1232; Rex v. Lucas, 10 East, 235, 103 Eng. Rep. (Reprint) 765; Rex v. Merchant Tailors Co., 2 Barn. & Ad. 115, 109 Eng. Rep. (Reprint) 1086; Rex v. Staffordshire, 6 A. & R. 84, 112 Eng. Rep. (Reprint) 33; Brewer v. Watson, 71 Ala. 299 (46 Am. R. 318); State v. McCubrey, 84 Minn. 439 (87 N. W. 1126); Re Caswell, 18 R. I. 835 (29 Atl. 259, 49 Am. St. R. 814, 27 L. R. A. 82); 34 Cyc. 593.
The vital question in this case is whether an abstractor, whether an individual or a corporation, can inspect all the public records in the clerk’s office, and make abstracts or copies therefrom for the purpose of completing abstracts of title to be used in a private abstract and land-title business carried on by such abstractor or corporation for gain. This question is concluded against the title company in this case, by the decisions of this court in Buck v. Collins, 51 Ga. 391 (supra); and Land Title Co. v. Tanner, 99 Ga. 470 (supra). In both of those cases it was held that this right was not granted by the law in existence at the time these decisions were rendered, and now found in section 14 of the Civil Code of 1910, which declares that "All books kept by any public officer under the laws of this State shall be subject to the inspection of all the citizens of this State, within office hours, every day except Sundays and holidays.” This provision has appeared in all the Codes of this State. Code 1863, § 16; Code 1868, § 14; Code 1873, § 14; Code 1882, § 14; 1 Code 1895, § 14; Civil Code (1910), § 14. The origin of this provision is not wholly statutory. The germ thereof is found in the act of December 26, 1831. Acts 1831) p. 90; Cobb’s Digest, 195. This provision, in the form in which it now appears, is the product of codification made by the compilers of our first Code.
But it is insisted that under the above decisions an abstractor, *521whether an individual or a corporation, can inspect all the record books in the office of the clerk and can make copies of or abstracts from such records, with the consent of the clerk. This contention is based upon the language in those decisions that “A private citizen has not a right, against the consent of the clerk of the superior court and without the payment of his fees, to examine the books of record in his office, for the purpose of making a full abstract of the contents thereof, for publication.” It happened that in both of the above cases the proceeding was against the clerk to compel him to permit such inspection and the making of full abstracts of the contents of such records; and the language, “against the consent of the clerk,” was used in view of this situation; and .the conclusion can not be drawn from this language that the clerk of the superior court possesses the power to permit an abstractor to make copies of, or abstracts from, the records in his office for the purpose of making abstract books for gain by the abstractor. The right granted by this section of the Code does not rest upon the consent of the clerk, but rests upon the statute alone. It is not within the power of the clerk tó enlarge the right or privilege conferred by this section of the Code. Prior to the time the clerk of the superior court of Fulton County was put upon a salary, it may be he might have waived any fees coming to him for services rendered to any abstractor under the provisions of this section. What this court held in the ¿decisions cited was that an abstractor had no “right to go into the clerk’s office, during office hours, from day to day and from month to month, at his pleasure, copy from the books when they are not in use, at his option, and thus collect material for” the purpose of furnishing abstracts of title for compensation. This court held that it was the evident intention of this section of the Code to provide for examination of these records from time to time, as the ordinary occasions and business of men might require; but that it was not the intention of this provision to permit parties to make examinations of all records in the clerk’s office for the purpose of furnishing abstracts, when there was no particular occasion requiring such examination. In Land Title Co. v. Tanner, supra, the request was made to review and reverse the decision in Buck v. Collins, supra; but this court, “upon a careful examination of that decision and the reasoning upon which it proceeds,” refused to overrule it; and the principle announced in that case was reaffirmed.
*522In the present case we have been requested to review and overrule the decisions in both of these cases; and after due consideration the writer is of the opinion we should decline to do so. If the title company is permitted to go into the clerk’s office with a corps of employees, is permitted to occupy a large space therein for its exclusive use where it maintains a private office, with ten or more desks therein, private lockers, a private telephone, wherein it carries on its private business, and has in said space in the clerk’s office twelve or more employees who have complete access to all the records in the clerk’s office, then other abstractors should be given the same right; and the office of the clerk would be overrun with abstractors and their employees conducting their private businesses therein, and the legitimate purposes for which the clerk’s office is established would be impeded, if not destroyed. I do not think private persons or corporations have any right, under the section of the Code with which we are dealing, to thus transact business in the clerk’s office; nor have they any right under this section to make abstracts of all the records in the clerk’s office for private gain or otherwise. I do not mean to say that abstractors have not the right to inspeet the public records whenever they are called upon to furnish abstracts of title in given cases; and the Atlanta Title & Trust Company has the right to inspect the public records in the clerk’s office whenever they are called upon to furnish abstracts of title in given cases, but not otherwise.
The principle announced by this court in Buck v. Collins, and Land Title Co. v. Tanner, supra, is in harmony with the decisions of the courts in other jurisdictions, in which it is held that the right to inspect public records is confined to those having some interest in the particular record sought to be inspected or copied, and does not extend to one seeking to do so for mere curiosity or for his own private gain. Webber v. Townley, 43 Mich. 534 (5 N. W. 971, 38 Am. R. 213); Bean v. People, 7 Colo. 200 (2 Pac. 909); Cormack v. Wolcott, 37 Kan. 391 (15 Pac. 245); Scribner v. Chase, 27 Ill. App. 36; Brewer v. Watson, supra; Randolph v. State, 82 Ala. 527 (2 So. 714, 60 Am. R. 761); State v. Grimes, 29 Nev. 50 (84 Pac. 1061, 5 L. R. A. (N. S.) 545, 124 Am. St. R. 883); West Jersey Title Co. v. Barber, 49 N J. Eq. 474 (24 Atl. 381);. Newton v. Fisher, 98 N. C. 20 (3 S. E. 822); Burton v. Reynolds, 102 Mich. 55 (60 N. W. 452); State v. McCubrey, supra; Belt v. *523Prince George’s County Abstract Co., 73 Md. 289 (20 Atl. 982, 10 L. R. A. 212); 34 Cyc. 593. There are decisions which hold to the contrary of the above. Some are based upon statutes, and others hold that the right to inspect such records confers the right upon abstract companies to search all the records for the purpose of making complete abstracts of title to all property. As illustrative of the cases which hold to the contrary of what is said above, see State v. Rachac, 37 Minn. 372 (35 N. W. 7); State v. McMillan, 49 Fla. 243 (33 So. 666, 6 Ann. Cas. 537); Shelby County v. Memphis Abstract Co., cited in the majority opinion.
From information gained in making abstracts of title to real estate in Fulton County in the manner above set out, the title company causes to be published and circulated, among mortgage-loan brokers and other persons willing to pay therefor, a list showing the names of debtors, the amounts and maturity of mortgages or loans on real estate located in said county, which are furnished thirty to sixty days in advance of the dates of maturity, to permit brokers to solicit renewals of such loans. In my opinion this is a perversion of the purpose for which are kept record-books relating to titles to, and encumbrances on, real property. As this court held in Bucle v. Collins, supra, “The necessities of society, and the protection of those dealing with property, require that these records shall exist. That the title to land, the fact that mortgages or judgments exist, shall be capable of being inquired into by those interested. This is, as we have said, a necessity of society, and this necessity begets the necessity for books and records. The character of one’s title, and whether one has mortgages or judgments against him, is thus of necessity open to inquiry, and the public, by providing books and records, meets this necessity. Men are required, for the protection of purchasers and to secure fair dealing, to put their titles upon record,.and to expose, in some respects, what they may have strong inducements to keep secret. But while the public interest thus provides a mode by which any one may learn the truth upon inquiry, it is no part of the public scheme to make this exposure universal. It provides that those who seek the information can get it, but it does not and ought not to flaunt the information its records contain before the public gaze, and thus make a scandal of a public necessity. The object of the record is to furnish to those needing it the information the record contains. *524That object is attained when its books are open to inquiries as these occasions present themselves. The object sought by the complainant, to wit, to put the substance of these records into print, to be sold and put in the hands of any one who may chance to buy or to borrow, is an extension of this publicity beyond the necessities which make the record justifiable, and is a perversion of the object sought by the requirement to record. It is an unnecessary Haunting of private matters before the public gaze.” So I am of the opinion that the inspection of these records for the purpose named is a perversion of the right of inspection; and that inspection for this purpose should be denied. In view of this, the special demurrer to paragraph 14 of the petition is without merit.
For several years prior to January 1, 1925, and since then, the title company has been permitted by the clerk to examine and abstract all records in his office, in the following manner: When a person files with the clerk an instrument required to be recorded, which affects the title to real property, the instrument is first indexed by the clerk. It is then delivered into the possession of an employee of this company, and is by such employee removed from that portion of the court-house occupied bjr the clerk to that portion of the court-house occupied by this company. The employee of the company first causes a serial number used by it to be stamped on such instrument. Then a full abstract of said instrument is made by the company. After said abstract has been made, the possession of the instrument is returned to the clerk, who causes said instrument to be recorded in a record-book, together with the private serial number of the title company on such instrument, and said serial number is made a part of the permanent record of the instrument. After such recording the title company is permitted, before the record is completed on the clerk’s indexes, to obtain from the face of the original instrument the book and page number. The employees of the company are given the combination of the lock of the vault in which the record-room is located, are permitted to have keys to the clerk’s office, and are permitted to enter said record room and offices at any and all hours of the day and night.
The clerk has no right to permit the title company to affix its serial numbers to instruments which, after being filed and recorded, are to be returned to the owners thereof, and to have such serial numbers recorded along with such instruments. Such instruments *525are private documents to which, the abstract company has no right to affix its serial numbers; and the clerk has no right to permit this company so to do, and no right to record with these private documents these serial numbers. The clerk has no right to enter on such instruments any entries except the dates of filing and the books and pages in which they are filed, and the dates of their record. The serial numbers of the title company have no place upon such instruments, and no place upon the public records. It is the duty of the clerk “To keep all the books, papers, dockets, and records belonging to their office with care and security.” Civil Code (1910), § 4892, par. 10. It is a plain and palpable violation of the duty of the clerk in this respect to give to the employees of the abstract company the combination to the lock of the vault in which are kept the record books in his office, and instruments left with him for record, and to permit such employees at all hours in tlie day and night, and during the times when he is absent and can not supervise the keeping and handling of such records and documents, to have access to and the handling of such books and records.
In paragraph 10 of his petition the plaintiff alleges that this company has made a complete abstract of all records on file in the clerk’s office. In paragraph 11 it is alleged that this company since 1925 has abstracted approximately 312,000 legal instruments which affect the titles to real property in this county and which were required to be recorded, for which this company should have paid to the clerk $78,000 or more. In paragraph 12 it is alleged that the defendant and his predecessors in office have failed and refused to collect such fees and pay the same into the treasury of the county, as required by law. The title company demurs to paragraph 11, on the grounds that its allegations are irrelevant; that under no circumstances is the plaintiff entitled to require the clerk to bring any action to recover any amount due to any clerk of Fulton superior court, except himself; that it does not set forth what legal instruments are referred to; that the legal instruments for which the clerk should make claim are not segregated; that it is not shown how the amount of $78,000 is arrived at; and that the allegations of this paragraph are vague and indefinite. The title company demurs to paragraph 12, on the grounds that the clerk could in no event be required to collect any fees except those aris*526ing during liis term of office; and that the petition does not show that the defendant clerk is entitled, from any of the facts set forth, to recover any fees whatsoever from the title company. -The first question raised by these demurrers is whether the present clerk of Fulton superior court can be required to collect any fees due by the title company for services rendered to it in the inspection of the records in the clerk’s office relating to titles to and liens on real property, which accrued during the terms of his predecessors in office and which' should have been collected by them and turned over to the County of Fulton. By the act of August 13, 1924 (Acts 1924, p. 87) the clerk of the superior court, the sheriff, the ordinary, the tax-collector, and the tax-receiver of Fulton County were put upon salaries on and after January 1, 1925. The act of 1924 was amended by striking therefrom sections 6 and 7 and by substituting in lieu thereof a new section which reads, in part, as follows: “All fees, costs, percentages, forfeitures, penalties, allowances, and all other perquisites of whatever kind, which are now or may hereafter be allowed by law to be received or collected as compensation for service by any officer herein named, shall be received and collected by all of said officers, and each of them, for the sole use of the county in which they are collected, and shall be held as public moneys belonging to said county, and accounted for and paid over to said county on the first day of each month, at which time a detailed itemized statement shall be made by the officer, under oath, showing such collections and the sources from which collected, and the county treasurer shall keep a separate account showing the sources from which said funds were paid.” Acts 1925, p. 159; 12 Park’s Code Supp. 1926, § 615(f). Does this provision require a clerk in office to collect and account for fees which accrued during the terms of office of his predecessors, and which were not collected by such officers? By this section it is made the duty of the clerk of Fulton superior court to receive and collect all fees, costs, percentages, forfeitures, penalties, allowances, and all other perquisites of whatever kind which are allowed by law to be received or collected as compensation for services rendered by any officer; aird he is to collect and receive the same for the sole use of the county in which they are collected, and the same are to be held by him as public moneys belonging to the county. This is a function of the office, and not of the officer. As a general rule *527the duties imposed by law upon public officers are functions and attributes of the office, and not of the officer. They remain although the incumbent dies or is changed, and are to be performed by the incumbent although they may have been left undone by his predecessor in office. State v. Holgate, 107 Minn. 71 (119 N. W. 792); State v. Johnson, 111 Minn. 10 (126 N. W. 479); State v. Brooks-Scanlon Lumber Co., 122 Minn. 400 (142 N. W. 717); Dade County v. State, 95 Fla. 465 (116 So. 72); 46 C. J. 1025 (§ 301), C; 22 R. C. L. 458, § 118. So I am of the opinion that it is the duty of 'the incumbent clerk of Fulton superior court to collect any and all fees which may be due to the County of Fulton for services rendered by himself or his predecessors in office in the inspection of the books when their aid is required.
Before the clerk of Fulton superior court was put upon a salary by the act of 1924, he was entitled to a fee of 25 cents for an inspection of the books in his office when his aid was required; and he was likewise entitled to a fee of $1.50 for the examination of records and abstracts of the result. Civil Code (1910), § 5995. But it is insisted by counsel for the title company that it inspects the books without the aid of the clerk, and that it makes examinations of the records in the clerk’s office and abstracts therefrom without the help of the clerk. Under the act of 1924, whatever fees the clerk would be entitled to receive in these matters go to the county. Our law does not give the county any special fees for keeping safely the books and records in the office of the clerk. It did not formerly give the clerk any special fees for rendering this service. The payments which the clerk formerly got for the duty of always being on hand, watching his books, and keeping them ready of access were the fees which, in the ordinary course of business, he would receive for inspections, examinations, and abstracts. The fees which the county now receives on this score are the same as those which the clerk formerly received. The scheme of the title company strikes at the very root of these lawful perquisites which the clerk formerly received and which the county is now entitled to receive. Its purpose is to have in its own office complete copies of the records in the clerk’s office; and to be able to furnish abstracts of title or certificates of title for pay to all persons who apply to it therefor. Thus the perquisites which the county would receive from having the clerk inspect these records *528and make examinations and abstracts thereof will be greatly diminished, if not. finally wiped out entirely. While I concede that the title company is entitled to examine the books in the clerk’s office whenever it is called upon to investigate the title to a given piece of property, without the payment to the clerk of the fee prescribed for the inspection of the books in his office where it does not require the aid of the clerk, it does not have the right, under the law as it now stands, to examine all the records in the clerk’s office and make abstracts thereof for gain to the hurt and detriment of the county. Besides, the inspections of the books in the clerk’s office, made by the title company, are done with tlje aid of the clerk. In fact the clerk renders extraordinary aid to this company in making its inspections of the books in his office. The clerk permits the title company to maintain its office and employees within the clerk’s office to facilitate this work. The clerk delivers to the title company the original instruments left with him for record, as soon as filed, and permits it to examine them, and make abstracts thereof, in preference to others who may desire to do so. He permits the title company to take the custody of original instruments, to remove them to its private quarters for inspection, and to retain them for substantial periods. This gives to the company a great preference over ordinary inspectors of the books in his office. Again, after the instrument is recorded, the clerk permits the title company to inspect anew the original instrument, and from it to take a record of the book and page on which it appears upon the clerk’s record. Again, the clerk furnishes to the abstract company the combination of the vault in which these books and records are kept, and permits this company to have in its own possession these books and records, in the absence of the custodian thereof, both in the day and at night. This is rendering to this company extraordinary aid in inspecting these books and records; and in these circumstances the title company is liable to the County of Fulton for the fee of 25 cents for each inspection made by it.
Besides, this section formerly gave to the clerk and now gives to the county a fee of $1.50 for each examination of the records and abstract of the result. The proper construction of this provision is that one who desires an examination of the records and an abstract of the result must pay this fee to the county, although he may be able to make the examination and abstract of the result *529without the aid of the clerk. TJnder the law as it stood before the act of 1924, the clerk was entitled to this fee whenever an examination of the records and an abstract of the result was made, although such party could make the examination and abstract of the result without the aid of the clerk; and under the law as it now stands the party desiring such examination of the records and an abstract of the result must pay such fee to the county. Such party can not now deprive the county of this fee by reason of the fact that he is in a position to make such examination and abstract of the result without calling upon the clerk for aid in so doing. This paragraph of the petition is not demurrable for the reason that it does not set forth what legal instruments are referred to therein, or because the same does not segregate the legal instruments for which the clerk should make claim for the fees due under this section in this matter; and it is not demurrable because it is not shown how the amount of $78,000 is arrived at, or because the allegations of this paragraph are vague and indefinite. This proceeding is not brought to recover any amount from the title company. If it were, it should set forth the particulars which the demurrer claims should be therein. It is not a suit against.the title company for an accounting. It is a proceeding against the clerk to require him to institute a suit against the title company for accounting. In a proceeding to obtain an accounting the plaintiff is not obliged to set out an itemized statement showing the amounts claimed by him, or to aver how much is due him upon an accounting; but all the petitioner in such a proceeding has to aver are facts sufficient to indicate that something will be found to be due him by the defendant. Gould v. Barrow, 117 Ga. 458 (43 S. E. 702); Smith v. Hancock, 163 Ga. 222 (136 S. E. 52).
Paragraph 13 of the petition alleges that the defendant has permitted the title company to occupy a large space in the clerk’s office for its exclusive use, and that this company in such space maintains a private office in which it has ten or more desks, private lockers, a private telephone, where it carries on its private business, and maintains in said space twelve or more employees who have complete access to all portions of the clerk’s office. In paragraph 15 it is alleged that the title company has been permitted to use the public property of Fulton County, of the rental value of $125 per month, since January 1, 1925, without paying the county any-*530tiling for its use. In paragraph 16 it is alleged that the clerk is illegally permitting the title company to occupy space in the Fulton County court-house, which neither the clerk nor any one else has the right to permit any private individual or corporation to do. The title company demurs specially to paragraph 13, upon the grounds that (a) the use of the space allocated by the clerk to it is a matter discretionary with that officer, and it is for him to determine in his discretion who may enter in the clerk’s office, and the use that such persons so entering may make of the space in said office, or of the records therein; (b) that if the clerk allows the title company to use any space in his office for which payment should be made, the right is vested in the county commissioners to either lessen the space allocated to the clerk or to demand such payment; (c) that the discretion thus vested in the clerk can not be controlled by mandamus; and (d) that the allegations in said paragraph do not show any reason why the privileges granted to the title company should not be permitted by the clerk. The title company specially demurs to paragraph 15, upon the grounds that the allegations therein do not show any right on the part of the clerk to make any charge for the space in his office; that the law does not give .the clerk the power to make a charge therefor; and that if there is any right to make a collection therefor, such right is in the county commissioners. The title company specially demurs to paragraph 16, on the grounds that the office of the clerk is a public office, whose records are necessarily open to public examination; that if there is any right to prevent the title company from using space in that office, provided the clerk consents thereto, such right is in the county commissioners; and that, the clerk having the discretion in this matter, no mandamus can issue against him to control his discretion.
As I construe the present proceeding it is not brought to compel the clerk’to bring any action against the title company to recover any rent for the space occupied by it in the clerk’s office. It is true that paragraph 15 alleges that the title company has been using space in the clerk’s office, of the rental value of $125 per month, since January 1, 1925, without paying the county anything therefor. The petition does not allege that the title company is due this rental to the county; and the petition does not specifically pray for a mandamus requiring the clerk to sue therefor. It is *531likewise true that the first prayer of the petition is'that the clerk show cause why he should not be compelled to institute appropriate proceeding against this company to recover all fees'and money due the county as set out above, and to require in said proceeding an accounting by this company in order that the amount due by it may be determined. I do not construe this ground of the prayer of the petition to be for mandamus requiring the clerk to institute a proceeding against the title company to recover the rental value of the space occupied by it. The allegation in paragraph 15 as to the rental value of the space occupied by the company is alleged, as I construe it, to show the illegal occupancy of space in the clerk’s office by the title company; and this allegation is made as one of the reasons why a mandamus should be granted to compel the clerk to take the necessary steps to dispossess this company from the space occupied by it in the clerk’s office in the court-house. Under this construction it is not necessary to determine in whom the right is vested to sue for the rental value of the space occupied by the title company, as the petition in this case is not brought to recover such rental value. As we have seen, the prayer is to dispossess the title company from the space and office which it has rigged up in the clerk’s office for the purpose of carrying on therein private business for its private gain; and as the right to occupy this space and office is claimed upon the ground that it is one granted by the clerk, and as we have seen that the clerk has no such right, the petition is properly brought for a mandamus to compel the clerk to dispossess the title company.
The title company further demurs on the ground that there is a misjoinder of causes of action, in that the petition seeks to compel the clerk not to permit the title company to occupy space in his office, and to compel him to collect charges from that company for inspection of the books in his office. Misjoinder of causes of action is a ground of demurrer. Civil Coxle (1910), § 5631. Separate and distinct rights, whether of one person or of several persons respectively, can not be joined for the purpose of their enforcement in one mandamus proceeding, whether the different duties rest on one person or on several persons respectively. While this is true, the court may in one proceeding enforce the performance of separate but co-operative acts required by law to be done by an official in performance of his duty. So where the several *532grievances complained of are analogous, where the remedy sought is identical, and where the facts have been alleged in a single count or cause of action, the petition is not demurrable on the ground that separate causes of action are improperly joined. Where one of the rights sought to be enforced is a necessary incident of the other, it has been held that no obstacle exists to the granting of complete relief in one proceeding. People v. Coffin, 279 Ill. 401 (117 N E. 85); 38 C. J. 882 (§ 598), f. In this case the rights sought to be enforced are analogous. The remedy sought is identical. The facts have been averred in a single cause of action. One of the rights sought to be enforced is a necessary incident of the other. The controlling purpose of the petition is to prevent the clerk from permitting the title company to carry on its private business for gain in the clerk’s office, to prevent it from examining all of the records and books therein pertaining to the title to real estate and encumbrances thereon, and to require the clerk to collect from the title company fees past due by it to the county. The rights are analogous.
In the opinion of the majority it is said that mandamus issues to “compel performance of specific acts where the duty is clear and well defined, and when no element of discretion is involved in the performance.” In support of this the case of Patterson v. Taylor, 98 Ga. 646 (supra), is cited. I have no quarrel with that decision. It is again urged that “The remedy of mandamus is essential to compel performance.” In support of this doctrine the majority cite Jackson v. Cochran, 134 Ga. 396, and Bahnsen v. Young, 159 Ga. 256 (supra). With this doctrine I have no quarrel. Again, it is stated that mandamus “is not to prevent specific acts.” The majority cite other authorities to sustain the proposition that “Mandamus is strictly a legal remedy to compel action. . . It is very generally held that mandamus is not the proper remedy where the relator does not ask that the defendant be compelled to do an act, but demands on the contrary that he be forbidden to do certain acts.” In support of this doctrine the majority cite 38 C. J. 545 (§ 12), Southern Leasing Co. v. Williams, 160 N. Y. Supp. 440, and State v. Connersville Natural Gas Co., 162 Ind. 563 (supra). Evidently the majority have overlooked the prayers of the petition. The first prayer is that the clerk show cause why “he should not be compelled to institute *533appropriate proceedings against” the title company “to recover all fees and monies due the County of Fulton, as hereinbefore set forth, and to require in said proceeding an accounting by said company in order that the amount due said county may be determined.” Here the prayer is to compel the clerk to do something, and not to prevent him from doing something. The second prayer is that the clerk show cause why “he should not be compelled to take the necessary steps to dispossess” the title company “from the space occupied by” it “in said court-house.” Here the prayer is for action, and not to prevent the clerk from acting. The third prayer is that the clerk show cause why.“he should not be compelled to stop the practice” of the title company “in examining, abstracting, and mutilating the records in his office in the manner and method set forth in this petition.” Here the prayer is to compel the clerk to act. It does not seek to prevent him from acting. The next prayer is for the grant of a mandamus absolute. This prayer is not to prevent the clerk from acting; but to compel him to act in doing the things specified in the prayers above recited. This is not seeking mandamus to prevent the clerk from acting, but to compel him to act. There is thus not a single prayer in the complaint which seeks to prevent the clerk from doing any act. On the contrary, all the prayers seek to compel him to act, and to discharge duties which are imposed upon him by the law. In the portion of the opinion of the majority in which they deal with this question, they have entirely overlooked or wholly disregarded the prayers of the petition. There is not a syllable in the petition or in its prayers which seeks to prevent the clerk from doing anything. Its sole pirrpose is to compel him to act, as shown above.
For the reasons above stated I feel compelled to dissent from the opinion of the majority. The true law of this case supports the action of the petitioner. The law requires that the ordinary shall designate the room or rooms in the court-house to be occupied by the clerk of the superior court. Civil Code (1910), § 401. Where there are county commissioners in a county, as in Fulton County, this duty devolves upon these officers. Space in the courthouse is thus designated for occupancy by the clerk for the purpose of transacting the public business incident to this office. The clerk is wholly without authority to permit individuals or corporations *534to occupy space therein for the purpose of conducting private business for private gain. In this case the clerk of the superior court is permitting the title company to occupy a large space in his office for its exclusive use, where it maintains a private office, in which it has ten or more desks, private lockers, a private telephone, wherein it carries on its private business, and wherein it has twelve or more employees, who have access to all offices in the clerk’s office. The petition in this case was brought to compel the clerk to eject the title company from this space and office which it maintains in the clerk’s office. In the court-house in Fulton County there is a fireproof vault in which the public records must be placed at night or when the clerk is absent. Civil Code (1910), § 400. The employees of the title company are given the combination of the vault by Avh'ich the record-room is locked, and are permitted to enter said record-room and offices at any and all hours of the day and night. It is the duty of the clerk of the superior court “To keep all the books, papers, dockets, and records belonging to their office with care and security.” Civil Code (1910), § 4892, par. 10. There could not be a more flagrant violation of official duty than that set out above. The clerk violates his sworn duty when he gives to the employees of individuals or corporations the combination to the vault in which public records of his office are kept, when he permits such employees to have keys to his offices, and permits them to enter the record-room and his offices at any and all hours of the day and night, especially when he is absent. By doing this he does not keep the books, papers, dockets, and records belonging to his office with care and diligence. It is the duty of that officer, instead of granting these privileges, to refuse them. In this matter he has no discretion. The present suit was brought to make him discharge his duties in these matters, and to require him to abandon the practices complained of.
When a person files with the clerk an instrument required to be recorded, which affects the title to real property, the instrument is first indexed by the clerk, is then delivered to the possession of an employee of the title company, and is by such employee removed from that portion of the court-house occupied by the clerk to that portion of the court-house- occupied by this company. The employee first causes a serial number used by the title company to be stamped on such instrument, then such employee makes a full *535abstract of the instrument for the company, ancl after such abstract has been made the instrument is returned to the clerk, who causes the instrument to be recorded, together with the private serial number of the title company on such instrument. Said serial number is made a part of the permanent record of the instrument. After the record of the instrument an employee of the title company is permitted, before the record is completed on the clerk’s indexes, to obtain from the face of the original instrument the book and page number of the record. This practice is pursued with regard to every instrument affecting the title to real estate. The title company is thus the first person permitted to have possession and to make examinations of all such instruments filed for record in the clerk’s office, whether it may have occasion to examine the title in any given case in which it is employed so to do. It is thus given a very valuable privilege to the exclusion of all other members of the public, including other persons and corporations engaged in making abstracts from the records; and thus an actual monopoly in this matter is given to the title company. The present proceeding was brought to compel the clerk to abandon this practice and to grant to others equal rights with the title company in the premises. It does seem to me if there ever was a complaint which' set forth a clear, legal, and just cause of action, the present suit is such. 1 It seems to me that it is a patent miscarriage of right to reverse the judgment of the able trial judge overruling the demurrer of the defendant to the petition in this case.