Opinion
15038.
OCTOBER 6, 1944.
REHEARING DENIED OCTOBER 17, 1944.
Mandamus. Before Judge Hendrix. Fulton superior court. August 30, 1944.
H. A. Allen, for plaintiffs.
T. Grady Head, attorney-general, R. A. McGraw and Victor Davidson, assistant attorneys-general, for defendants.
In a suit for mandamus, the duty which the petitioner seeks to have enforced must be one arising by law, either expressly or by necessary implication; and the law must not only authorize the act to be done, but must also require its performance. The petition, seeking only to require the Secretary of State to certify the names of certain candidates to the Governor, in the absence of any statutory law or decision of the courts of this State requiring him to do so, failed to show any cause for the issuance of the writ of mandamus.
No. 15038. OCTOBER 6, 1944. REHEARING DENIED OCTOBER 17, 1944.
W. R. Tucker and others filed in Fulton superior court, against John B. Wilson, Secretary of State, a petition which as amended alleged substantially the following: More than ninety days before the general election to be held on November 7, 1944, the petitioners, by authority of the State Central Committee of the Republican organization in the State of Georgia, recognized by the Republican National Committee of the National Republican Party, filed with the defendant stated names as candidates for presidential and vice-presidential electors on the Republican ticket, to be placed on the ballot under the names of Thomas E. Dewey, candidate for President, and John W. Bricker, candidate for Vice-President. The defendant has no discretion to refuse to certify the names of candidates for presidential and vice-presidential electors when they reach him by a certificate in proper form; nevertheless, he refused to certify these candidates and arbitrarily certified, to go on the Republican Party ballot, twelve other names of candidates who are not recognized by the Republican National Committee. It was the defendant's duty, as a matter of law, to certify the names of the candidates for electors, as set out in the petition, to the Governor of Georgia, so that he might send them to the ordinaries of the several counties of the State for the purpose of placing such names on the ballot. The prayers were: (a) that the court issue a mandamus nisi, to require the defendant to show cause why a mandamus should not be issued requiring him to certify to the Governor of Georgia the names of the candidates set out in the petition for the office of presidential and vice-presidential electors from the State of Georgia: (b) that on the hearing the mandamus be made absolute, and the defendant be required to certify to the Governor of Georgia the above-mentioned names, so that they may be placed on the Republican Party ballot; and (c) for process.
The defendant demurred on the grounds, among others: because the petition sets out no cause of action; the laws of Georgia do not place upon the defendant the duty of performing the acts sought to be required of him by the petitioners; the petition fails to allege a clear legal right on the part of the petitioners to require the act done which they sought to have performed.
The exception is to an order sustaining the above grounds of demurrer and dismissing the petition.
(After stating the foregoing facts.) Article 5, section 2, paragraph 2, of the constitution of this State (Code, § 2-2702) provides that the General Assembly shall have power to prescribe the duties and authority of the Secretary of State. The Code, § 34-1904, as amended by the act of 1943 (Ga. L. 1943, p. 292; Ga. Code Ann., § 34-1904), provides in part: "All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 30 days prior to the regular election." Section 8, paragraph 1 of the act approved January 7, 1944 (Ga. L. Ex. Sess. 1944, p. 2), provides: "All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least ninety days prior to the regular election."
Counsel for the petitioners do not cite any specific act of the legislature or decision by the courts of this State which requires the Secretary of State to certify the names of candidates to the Governor, but insist that by implication the law requires the names to be thus certified, so that the Governor may send them to the various ordinaries, as provided in the Code, § 34-1401. The only duty which the above statutes require of the Secretary of State relative to the nomination of candidates for the various offices is to receive the nominations and file them.
The writ of mandamus is available to require a public officer to perform acts and duties imposed by law upon such officer (Code, § 64-101); but the writ will not lie to compel such an officer to do an act not clearly commanded by law. Patterson v. Taylor, 98 Ga. 646 ( 25 S.E. 771); Douglas v. Board of Education of Johnson County, 164 Ga. 271 ( 138 S.E. 226); Sibley v. Park, 175 Ga. 846 (2) ( 166 S.E. 212); Wrightsville Consolidated School District v. Selig Company, 195 Ga. 408 ( 24 S.E.2d 306).
While our law requires that the names of the candidates shall be filed with the Secretary of State, and also that the Governor shall furnish a form of ballot to the ordinaries, still no method is provided for any official notice to be given to the Governor by the Secretary of State. The Code is silent as to how the Governor is to acquire the names of candidates to be placed upon the ballot to be sent to the ordinaries. Had the petition of the plaintiffs in error included the allegation that, through a long-established, unbroken custom the Secretary of State had in the past certified to the Governor the names of candidates filed with him, it might be that such usages and practices by the Secretary of State could be relied upon as showing a duty of that official in lieu of any express provision in the law; but this question is not now for decision. The courts give some recognition to the practices of departments of state. See, in this connection: Solomon v. Commissioners, 41 Ga. 157; Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 669, 680 ( 58 S.E. 157); United States v. Midwest Oil Co., 236 U.S. 459 ( 35 Sup. Ct. 309, 59 L. ed. 673). But the petition, alleging merely that it is the duty of the Secretary of State to certify to the Governor the names of candidates, or that the duty arises by necessary implication, does not meet the requirements of a petition for mandamus. Consequently, the trial judge did not err in dismissing the petition on general demurrer.
Judgment affirmed. All the Justices concur.