Opinion
14766.
FEBRUARY 8, 1944.
Mandamus. Before Judge Hooper. Fulton superior court. November 3, 1943.
George Elmer Ross, pro se.
1. While against public officers the writ of mandamus is a remedy available to an individual where there is no other specific legal remedy, and a legal injustice will result from failure to perform a clear official duty, the writ will not control an officer in the exercise of his discretion, but will only require such officer to act, leaving him free to exercise his own discretion.
( a) Such a writ will issue to compel the State board of bar examiners to perform their duty of grading bar-examination papers, and, when the grade is seventy per cent. or more, to certify to the judge of the superior court before whom an examination has been taken that the applicant is entitled to a license to practice law in this State; but it will not in any case control the discretion of the board of bar examiners in determining what grade an applicant has made, because to do so would be to substitute the court's discretion for that of the board.
2. The petition in the present case, alleging that the petitioner made correct answers in a certain State bar examination, entitling him to a grade of more than seventy per cent. thereon, and seeking the writ of mandamus to compel the State board of bar examiners to certify that he is entitled to practice law in this State, but not alleging that the board has failed or refused to grade his paper, or in the exercise of its sound discretion, has placed a grade of seventy per cent. or more on his examination paper, and alleging only his conclusion that he has made the required grade, fails to show that the board has not performed its duty or that the certificate sought should be issued. No ground being shown for the issuance of the writ of mandamus, the trial judge did not err in declining to sanction the petition and in refusing a rule nisi.
No. 14766. FEBRUARY 8, 1944.
George Elmer Ross made application for a writ of mandamus. The petition prayed that a rule nisi issue, requiring the individual members of the State board of bar examiners to show cause why the writ of mandamus should not issue to require them to issue their official certificate to the effect that the applicant, whose examination papers were dated December 26, 1942, and identified the applicant by the Roman numeral X, is entitled to a license to practice law. The application is lengthy and contains many exhibits of correspondence between the applicant and the members of the board relating to his examination, the number of certificates of licensed attorneys as to his good character, and copies of the bar-examination questions. In paragraph 7 of the application it is alleged that the applicant made correct answers to all the questions on the various bar examinations referred to in the petition, but that "they have not been so considered nor graded." It is further alleged in this paragraph that the bar examiners have certified to the judge of the superior court, before whom the applicant stood the examinations, that the applicant, according to the numbers selected by him, identifying his examination papers, was not entitled to a license to practice law in this State. For a more detailed statement of the allegations of fact, see Ex parte Ross, 196 Ga. 499 ( 26 S.E.2d 880), where the same matter was previously before this court. Upon presentation of the application to Judge Hooper of the superior court of Fulton County, he entered an order reciting that in his opinion the petition did not show grounds for the writ of mandamus, and accordingly, declined to sanction the same or to issue a mandamus nisi. To this judgment the applicant excepted.
(After stating the foregoing facts.) Mandamus against public officers is a remedy available to an individual where there is no other specific legal remedy, and a legal injustice will result from failure to perform a clear official duty. Code, § 64-101. The writ will not control an officer in the exercise of his discretion, but will only require such officer to act, leaving him free to exercise his own discretion. § 64-102. The writ will not be granted when it is manifest that it would, for any cause, be nugatory or fruitless, or on a mere suspicion or fear, before a refusal to act or a wrongful act is shown. § 64-106; Smith v. Hodgson, 129 Ga. 494 (2) ( 59 S.E. 272).
Tested by these principles of law, how stands the petition in the instant case? The law makes it mandatory that the members of the State board of bar examiners perform their duties of grading examination papers, and when the grade is seventy per cent. or more, that they certify to the judge of the superior court before whom the examination was taken that the applicant is entitled to a license to practice law. Ex parte Ross, supra. To compel the performance of these duties, the writ of mandamus will issue on behalf of one taking or seeking to take the State bar examination, but while the writ will compel these officials to act, it will not in any case control their action in the performance of a duty which requires the exercise of discretion. Wood v. Board of Education, 137 Ga. 808 ( 74 S.E. 540); Daniels v. Commissioners, 147 Ga. 295 ( 93 S.E. 887); Richmond County v. Steed, 150 Ga. 229 ( 103 S.E. 253); Douglas v. Board of Education, 164 Ga. 271 ( 138 S.E. 226); Bashlor v. Bacon, 168 Ga. 370 ( 147 S.E. 762). To do so, would be for the court to substitute its discretion for that of the officials, and would thus violate the law defining their duty.
While the present application does not pray that the applicant's examination papers be graded by the court, and thus the action of the State board in grading his papers be judicially reviewed, it does allege his own conclusion that on each of the various examinations he made a grade in excess of seventy per cent., and apparently assumes that if it could be established by proof that his answers entitled him to a grade of seventy per cent. or more, this fact would be sufficient ground to require the examiners to certify that he was entitled to a license to practice law. The bar examiners are chosen because of their high character, knowledge of the law, and experience in the practice of the law, and they are made the sole and exclusive judges of the matter of grading bar-examination papers. This involves the exercise of discretion; and when they have acted and have given a grade to an examination paper, there is no appeal from that decision. As pointed out by this court in Wood v. Board of Education, supra, in grading examination papers no set formula is possible unless it be that all answers not one hundred per cent. correct must be classified as entirely incorrect. Such procedure would obviously be unfair and unjust. If the answer is correct in part and incorrect in part, the judgment and discretion of the examiner must be exercised in fixing a grade for that answer.
But the applicant in this case does not allege that the examiners have failed or refused to perform their official duties in the matter of grading his papers. The sole relief sought is that, since he concludes that he made a grade of seventy per cent. or more, the board be required to certify that the applicant is entitled to a license to practice law. The petition showing that the condition precedent to such certificate, to wit, that in the exercise of its discretion the board has given him a grade of seventy per cent. or more on his examination, has not been met, it is not shown that the board is under any duty to issue the certificate as prayed. Thus, the petition shows that the applicant has no ground for the issuance of the writ of mandamus, and the trial judge did not err in declining to sanction the same and in refusing a rule nisi. Code, § 64-107; Gay v. Gilmore, 76 Ga. 725.
Judgment affirmed. All the Justices concur.