dissenting.
In my opinion, Dollar v. Wind, 135 Ga. 760 (70 SE 335) (1911) is controlling authority and mandates a reversal of the trial court’s order in this case. Therefore, I respectfully dissent to the majority’s affirmance of what I consider to be the erroneous failure of the trial court to issue the writ of mandamus in favor of Southern Crescent Newspapers (News/Era).
In Dollar this Court clearly held that when an act of the General Assembly imposing an additional condition for designation as an official organ comes into effect before the designating officials have made an actual change in the official organ and complied with the applicable notification requirements, the designating officials thereafter are precluded from selecting a new official organ which does not satisfy the additional condition imposed by the statute. Thus, where the General Assembly passed an act requiring that the official organ have a two-year publication history and that act was
passed before there was an actual change in the medium of publication, and before notice of intention to change was published, the Grady County Progress could not thereafter be selected as the newspaper in which the official advertisements should be published, it having been established only a few weeks.
Dollar v. Wind, supra at 763 (1). Unless Dollar is distinguishable, this Court must conclude that where, as here, the General Assembly passes an act providing that the official organ must be a publication which has maintained an 85 percent paid circulation for at least a one-year period, the designating officials can select an official organ which does not meet this additional condition only if the act became effective after the actual change in official organs was made and the applicable notification requirement was satisfied.
The majority’s principal reason for concluding that Dollar does not control is that “our current Code differs greatly from that in effect at the time of Dollar” According to the majority,
[u]nlike the 1895 Code, our current section 9-13-142 plainly states that a change in a county’s legal organ “shall be made *48. . . upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court, or a majority of the officers.” . . . Hence, unlike the situation in Dollar, the official declaration that a new paper shall serve as legal organ is the official action that effectuates a change in legal organs. Once that action is taken by a majority of the responsible officials, a change in legal organs has been implemented.
(Emphasis in original.) I believe that, in its attempt to distinguish Dollar, the majority incorrectly relies upon its own selective quotation from the provisions of OCGA § 9-13-142 (c). The entirety of the relevant text of OCGA § 9-13-142 (c) demonstrates that, contrary to the majority’s suggestion, the statute does not affirmatively provide that the mere selection by the designating officials, in and of itself, constitutes the designation of a new official organ. To the contrary, OCGA § 9-13-142 (c) plainly states, in relevant part, that “[re]o change shall he made in the official organ of any county except upon the concurrent action” of the designating officials. (Emphasis supplied.) Thus, it is clear that the only substantive change effectuated by this language is that, unlike in Dollar, the designation of a new official organ must now be made by the designating officials acting collectively, rather than individually. Therefore, in its interpretation of OCGA § 9-13-142 (c), the majority is correct only insofar as it construes this addition to the statutory framework as “mandatory language.” However, it is negative mandatory language which precludes the designating officials from exercising individual authority, and not affirmative mandatory language which invests the designating officials’ collective selection with any automatic legal effect.
Certainly, on April 4, 1997, nothing in the language of OCGA § 9-13-142 (c) eliminated the requirement that the designating officials, whether acting individually as in Dollar or collectively as in this case, must also give notification of their intent to select a new official organ. Indeed, as the majority concedes, OCGA § 9-13-142 (c) contains the same notification requirement that was in effect when Dollar was decided. Both the Code section in effect on April 4, 1997, and § 5640 of the Civil Code of 1895 provided that no officer
shall change the advertising connected with his office from one paper to another without first giving notice of his intention to do so in the paper in which his advertisements have previously been published.
In Dollar, supra at 762-763 (1), we unambiguously held that,
[wlhether this provision be treated as mandatory or direc*49tory, it imposed a duty on the officer in connection with making any change in the advertising medium of the county, and he violated his duty if he made a change without compliance with it.
As further support for its attempt to distinguish Dollar, the majority asserts that our continued adherence to this interpretation of OCGA § 9-13-142 (c) will result in an unacceptable “contingent situation.” However, there is nothing unworkable in a simple requirement that the designating officials first give notice in the current official organ of their intention to publish future advertisements in another publication. Moreover, by retaining the statutory language for all of the years since the notification requirement in OCGA § 9-13-142 (c) was first construed in Dollar, the General Assembly has evidenced its intent that such requirement be construed no differently today than it was then. Mitchell v. State, 239 Ga. 3, 6 (235 SE2d 509) (1977). Thus, even accepting the majority’s otherwise unwarranted premise that the construction previously given to the statute in Dollar creates a problematic procedure, only the General Assembly is authorized to rectify it.
My review of the record reveals undisputed evidence that, prior to the General Assembly’s imposition of the new condition, the designating officials failed to perform their official statutory duty to give notice of their intention to change the official organ. In accordance with Dollar v. Wind, supra at 763 (1), “[i]f a change made without a compliance with this statute would be valid, it would only be so when the change had been actually made.” The evidence here also is undisputed that no actual change in the official organ was ever made before the new statute came into effect on April 14, 1997. The agreement reached by the designating officials on April 4, 1997 was that the change would not take effect until May 1, 1997, which date was later extended to July 1,1997. “[A]n agreement with a publisher that at some future time a change would be made, was not a completed change.” Dollar v. Wind, supra at 763 (1). It is undisputed that the effective date of the new enactment preceded any compliance by the designating officials with their official duty to notify, and also preceded any actual change in the official organ. “Here the newspaper in which it is sought to publish the advertisements is not legally qualified to be selected for that purpose. . . . [MJandamus is a proper remedy. . . .” Dollar v. Wind, supra at 764 (2). Therefore, it is clear that the trial court erred in failing to issue the writ of mandamus. OCGA § 9-6-20.
The Champion Newspaper contends that the judgment nevertheless should be affirmed because the issue is “moot,” in that the additional condition for its designation as the official organ has now *50been satisfied. However, the newly enacted requirement for designation as an official organ does not relate only to the length of time the Champion Newspaper has been in publication. Compare New Era Pub. Co. v. Guess, 231 Ga. 250 (201 SE2d 142) (1973). The statute provides that a newly designated official organ must have maintained an 85 percent paid circulation for at least a one-year period prior to its designation. Proof that such a requirement has been satisfied obviously requires the submission of evidence, and does not consist only of a consideration of the contents of a calendar in the exercise of judicial notice. Even assuming that the evidence did show that the Champion Newspaper first attained an 85 percent paid circulation on January 15,1997, there obviously is nothing in the record to show that it has maintained that level of paid circulation for the one-year period ending January 14, 1998. Moreover, the designating officials’ failure to comply with their statutory duty is not a matter which can be summarily dismissed as “moot.” Compare New Era Pub. Co. v. Guess, supra at 254. The designating officials’ “effort to declare that the [Champion Newspaper] should be the paper in which such advertisements should be made was equally ineffectual, because in violation of the statute.” Dollar v. Wind, supra at 763 (1).
Decided February 2, 1998. Hull, Towill, Norman & Barrett, David E. Hudson, Nancy S. Gentry, for appellant. Swift, Currie, McGhee & Hiers, W. Ray Persons, W. Charles Adams, Walbert & Mathis, David F. Walbert, Charles A. Mathis, for appellees.It is my opinion that Dollar v. Wind, supra, cannot be distinguished and, that, as a matter of law, the News/Era is the official organ of DeKalb County and should remain so unless and until a new qualified official organ is named by the designating officials acting in compliance with, rather than in violation of, the statutory provisions which control their authority to make the designation. Although the majority states that the impact of its holding is “quite limited,” the effect of today’s decision is to vitiate the applicability of Dollar in this and in all future cases. Because the majority’s failure to follow the holding in Dollar is inconsistent with the principle of stare decisis and renders OCGA § 9-13-142 (c) utterly meaningless, I respectfully dissent.
I am authorized to state that Justice Hunstein and Justice Hines join in this dissent.
Dow, Lohnes & Albertson, Lawrence P. Auld, Peter C. Canfield, Sean R. Smith, amicus curiae.