GA Code § 9-6-21 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 6 - Extraordinary Writs|Article 2 - Mandamus|§ 9-6-21. Not a Private Remedy; Enforcement of Officer's Discretionary Acts

  Mandamus shall not lie as a private remedy between individuals to enforce private rights nor to a public officer who has an absolute discretion to act or not to act unless there is a gross abuse of such discretion. However, mandamus shall not be confined to the enforcement of mere ministerial duties.   On the application of one or more citizens of any county against the county board of commissioners where by law supervision and jurisdiction is vested in such commissioners over the public roads of such counties and the overseers of the public roads complained of; or against the judge of the probate court where by law supervision, control, and jurisdiction over such public roads is vested in the judge and the overseers of the public roads that may be complained of; or against either, both, or all of the named parties, as the facts and methods of working the public roads in the respective counties may justify, which application or action for mandamus shall show that one or more of the public roads of the county of the plaintiff's residence are out of repair; do not measure up to the standards and do not conform to the legal requirements as prescribed by law; and are in such condition that ordinary loads, with ordinary ease, cannot be hauled over such public roads, the judges of the superior courts are authorized and given jurisdiction and it is made their duty, upon such showing being made, to issue the writ of mandamus against the parties having charge of and supervision over the public roads of the county; and to compel by such proceedings the building, repairing, and working of the public roads as are complained of, up to the standard required by law, so that ordinary loads, with ordinary ease and facility, can be continuously hauled over such public roads. The judges of the superior courts shall, by proper order, in the same proceedings compel the work done necessary to build, repair, and maintain such public roads up to the standard so prescribed.    (Orig. Code 1863, § 3131; Code 1868, § 3143; Code 1873, § 3199; Code 1882, § 3199; Civil Code 1895, § 4868; Ga. L. 1903, p. 41, § 1; Civil Code 1910, § 5441; Code 1933, § 64-102.)   Law reviews.   - For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).   JUDICIAL DECISIONS    Public office, within meaning of this section, means office which has been lawfully created. Such an office must be created by the Constitution, by some statute, or by municipal ordinance passed in pursuance of legislative authority. Benson v. Hines, 166 Ga. 781, 144 S.E. 287 (1928) (see O.C.G.A. § 9-6-21).   Discretionary acts by public officers.    - While mandamus is an appropriate remedy to enforce the performance by a public officer of any public duty which the officer neglects or refuses to perform, it is not available to compel the performance of an act which such an officer is not by law required to perform, but, to the contrary, is clothed with discretionary power. Douglas v. Board of Educ., 164 Ga. 271, 138 S.E. 226 (1927).   No clear legal right to mandamus where act discretionary.    - Where it is sought to compel an official act which is discretionary, the writ of mandamus generally will not issue because there is no clear legal right. Clear Vision CATV Servs., Inc. v. Mayor of Jesup, 225 Ga. 757, 171 S.E.2d 505 (1969).   Except where discretion grossly abused.    - Mandamus will not lie to control an officer vested with discretion which is not grossly abused. City of Atlanta v. Wright, 119 Ga. 207, 45 S.E. 994 (1903); Daniels v. Commissioners of Pilotage, 147 Ga. 295, 93 S.E. 887 (1917).    The writ of mandamus does not lie to control the conduct of an officer vested with discretion, except where the exercise of that discretion has been so capricious or arbitrary as to amount to a gross abuse. McGinty v. Gormley, 181 Ga. 644, 183 S.E. 804 (1935).    Writ of mandamus will not control officer in exercise of discretion, but will only require the officer to act, leaving the officer free to exercise the officer's own discretion. Ex parte Ross, 197 Ga. 257, 28 S.E.2d 925 (1944).   Commanding public officials to act.    - Where act required to be done involves exercise of some degree of official discretion and judgment upon the part of the officer charged with its performance, mandamus may properly command the officer to act, or in other words, set the officer in motion; however, it will not further control or interfere with the officer's action, nor direct the officer to act in any specific manner. Richmond County v. Steed, 150 Ga. 229, 103 S.E. 253 (1920).    Against an officer having discretion, the writ of mandamus may, in a proper case, be issued for the purpose of setting the officer in motion, without further controlling or interfering with the officer's action. McGinty v. Gormley, 181 Ga. 644, 183 S.E. 804 (1935).    By ordering the Department of Transportation (DOT) to submit a property owner's exemption request to the Federal Aviation Administration's administrator, the superior court went too far under its mandate authority provided by O.C.G.A. § 9-6-21. The only acts it could mandate concerning the exemption procedure were the development of reasonable guidelines enabling a landowner to seek a landfill exemption and a prompt and fair consideration of an exemption request; however, the outcome of those acts had to be left to the DOT's discretion. Ga. DOT v. Peach Hill Props., Inc., 278 Ga. 198, 599 S.E.2d 167 (2004).    Where board of county commissioners refuses to exercise its discretion to regulate sale of liquors, mandamus is proper remedy to compel the board to act. Thomas v. Ragsdale, 188 Ga. 238, 3 S.E.2d 567 (1939).   Pardon and parole power discretionary.    - The power of the State Board of Pardons and Paroles to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law and to remit parts of sentences is discretionary. Justice v. State Bd. of Pardons & Paroles, 234 Ga. 749, 218 S.E.2d 45 (1975).    Mandamus will lie to compel the State Board of Pardons and Paroles to consider application of a prisoner eligible for parole. Chandler v. Ault, 234 Ga. 346, 216 S.E.2d 101 (1975).    To enforce performance of ministerial act, obligation must be both peremptory and plainly defined; the law must not only authorize the act, but it must require the act to be done. Douglas v. Board of Educ., 164 Ga. 271, 138 S.E. 226 (1927).    Mandamus generally does not lie except to compel performance of a public duty. Martin v. Hatfield, 251 Ga. 638, 308 S.E.2d 833 (1983).    Mandamus cannot be maintained against private person. Carroll v. American Agrl. Chem. Co., 175 Ga. 855, 167 S.E. 597 (1932).   No mandamus against judge acting in private capacity.    - Mandamus could not be maintained against a judge who altered a bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) after it was filed with the clerk, as the judge was acting in a private capacity. State ex rel. Hodges v. Powers, 14 Ga. 388 (1853).    Mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. Carroll v. American Agric. Chem. Co., 175 Ga. 855, 167 S.E. 597 (1932).   Mandamus will not lie to enforce any private right or duty.    - There is no authority given in this state, either by statute or decision, which gives a private person the right to proceed by mandamus against a private individual for the enforcement of a private right or duty. Carroll v. American Agric. Chem. Co., 175 Ga. 855, 167 S.E. 597 (1932).   Mandamus to compel entry of judgment.    - Where a juvenile court failed to enter a written order, it failed to carry out an administrative act; therefore, mandamus was appropriate not to review the propriety of the court's denial of the filing, but to compel the judge to enter a written order from which an appeal could be taken under O.C.G.A. § 9-11-58(a) and Ga. Unif. Juv. Ct. R. 17.1. Titelman v. Stedman, 277 Ga. 460, 591 S.E.2d 774 (2003).   Act compelled by court as act of court and not of officer.    - If the act which involves the exercise of official discretion and judgment under the law is performed under the compulsory process of the court, obviously the act is the act of the court and not of the official required by law to exercise the official's discretion and judgment. Richmond County v. Steed, 150 Ga. 229, 103 S.E. 253 (1920).   False swearing in notary public application.    - Mandamus would not lie to compel a magistrate to issue an arrest warrant against an individual for false swearing in a notary public application where no abuse of discretion was shown. Chisholm v. Cofer, 264 Ga. 512, 448 S.E.2d 369 (1994).    Mandamus would not lie to control vested discretion in refusal of license by pilotage commissioners, without compliance with rules of said commission. Daniels v. Commissioners of Pilotage, 147 Ga. 295, 93 S.E. 887 (1917).    Tax receiver would not be compelled to place any particular value upon delinquent's property. Richmond County v. Steed, 150 Ga. 229, 103 S.E. 253 (1920).    Mandamus would not lie to compel Comptroller General (now State Revenue Commissioner) to reject return of railroad company for municipal taxation. City of Atlanta v. Wright, 119 Ga. 207, 45 S.E. 994 (1903).   Grading of papers of examination not subject to mandamus.    - Mandamus would not lie to control vested discretion in the grading of papers of examination for superintendent of schools by board of education. Wood v. Board of Educ., 137 Ga. 808, 74 S.E. 540 (1912).    Until road has been discontinued, remedy of one aggrieved, to require its repair, is mandamus, not for action for damages. Elbert County v. Swift, 2 Ga. App. 47, 58 S.E. 396 (1907); Shellnut v. Carroll County, 30 Ga. App. 200, 117 S.E. 333 (1923).    Mandamus is the only remedy of property owners where county authorities fail to keep up abandoned road and bridge which had not been discontinued or abandoned in the manner prescribed by law. Swiney v. DeKalb County, 102 Ga. App. 731, 117 S.E.2d 559 (1960).   Allegations that road will deteriorate not equivalent to statement of present bad condition as required by section.    - A statement in a petition wherein the petitioner invokes the power of the superior court to compel the working and repair of a public road, that such road will become impassable, or will get in such condition that ordinary loads, with ordinary ease, cannot be hauled continuously over such public road, is not the equivalent of the statement that the road is already in the condition to which this section applies but is a mere conclusion based upon the probability or possibility that the road will get in such condition. Van Valkenburg v. Stone, 172 Ga. 642, 158 S.E. 419 (1931) (see O.C.G.A. § 9-6-21).    Mandamus is not proper remedy to prevent exercise of county authority's discretion to relocate county road or make changes in the location of a road. Van Valkenburg v. Stone, 172 Ga. 642, 158 S.E. 419 (1931).   Duty of county as to road maintenance.    - O.C.G.A. § 9-6-21 does not require a county to do any more to an unpaved road which pre-existed an ordinance requiring the paving and grading of new streets than that which it should have done all along. Cherokee County v. McBride, 262 Ga. 460, 421 S.E.2d 530 (1992).   Duty of county to complete an unfinished road.    - County, which had accepted dedication of a subdivision road in 1962 but had not completed the road or maintained the road for 50 years, due to the county's mistaken belief that the road was private, was ordered to complete and maintain the road; the county's failure to complete the road was arbitrary and capricious, given the county's acceptance of subdivision plats requiring the road. As to unopened roads in the subdivision, the roads were not public under O.C.G.A. § 9-6-21(b), and the county had no obligation to maintain the road. Burke County v. Askin, 294 Ga. 634, 755 S.E.2d 747 (2014).    Discretion of commissioners in repairing main highways before completing second-class road would not be controlled where roads had been damaged by unprecedented rainfalls. Terry v. Wade, 149 Ga. 580, 101 S.E. 539 (1919).    Public road over which reasonable or ordinary loads cannot be hauled with reasonable or ordinary ease and facility, is not up to the standard required by law in this state. Commissioners of Sumter County v. McMath, 138 Ga. 351, 75 S.E. 317 (1912).    Unopened, undeveloped, proposed roads in a subdivision do not become "public roads" solely by virtue of the process of implied dedication and acceptance. Chatham County v. Allen, 261 Ga. 177, 402 S.E.2d 718 (1991).   Mandamus action challenging county board's decision abandoning road.    - In a mandamus action, a trial court erred by reversing a decision of a county board of commissioners to abandon a road as the trial court failed to give proper deference to the board's decision to abandon the road and substituted the court's own judgment for that of the board. Scarborough v. Hunter, 293 Ga. 431, 746 S.E.2d 119 (2013).   No clear right to mandamus to compel in-state tuition to noncitizen students to state university.    - Noncitizen students failed to show that the Deferred Action for Childhood Arrivals (DACA) policy had the force and effect of a federal law that would support a mandamus order requiring state universities to grant the students in-state tuition, and even if DACA had the force of law, DACA did not create a clear legal duty to grant the students in-state tuition. Alford v. Hernandez, 343 Ga. App. 332, 807 S.E.2d 84 (2017), cert. denied, No. S18C0459, 2018 Ga. LEXIS 327 (Ga. 2018).   Application.    - Trial court properly did not apply O.C.G.A. § 9-6-21 to a case brought by a property owner seeking mandamus relief to compel a county to open and maintain roads in a subdivision because neither party was a citizen entitled to petition the court as required by the statute. Burke County v. Askin, 291 Ga. 697, 732 S.E.2d 416 (2012).   Refusal to comply with mandamus as contempt.    - Refusal of county commissioners to comply with mandamus granted under this section was held to constitute contempt, even though proceedings were pending to discontinue road which was the subject of the mandamus proceedings. Odom v. McDilda, 155 Ga. 688, 117 S.E. 649 (1923).    Cited in Terry v. Wade, 149 Ga. 580, 101 S.E. 539 (1919); Morgan v. Shirley, 172 Ga. 727, 158 S.E. 581 (1931); Board of Educ. v. Board of Educ., 173 Ga. 203, 159 S.E. 712 (1931); Federal Life Ins. Co. v. Hurst, 43 Ga. App. 840, 160 S.E. 533 (1931); Du Bose v. Gormley, 189 Ga. 321, 5 S.E.2d 909 (1939); Persons v. Mashburn, 211 Ga. 477, 86 S.E.2d 319 (1955); Fountain v. Suber, 225 Ga. 361, 169 S.E.2d 162 (1969); Allen v. Carter, 226 Ga. 727, 177 S.E.2d 245 (1970); Fountain v. Bryan, 229 Ga. 120, 189 S.E.2d 400 (1972); Stein v. Maddox, 234 Ga. 164, 215 S.E.2d 231 (1975); Ross v. Hall County Bd. of Comm'rs, 235 Ga. 309, 219 S.E.2d 380 (1975); City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 267 S.E.2d 234 (1980), but see City of Cumming v. Flowers, 2017 Ga. LEXIS 171 (Ga. 2017); Lewis v. Schreeder, Wheeler & Flint, 265 Ga. 349, 455 S.E.2d 588 (1995); Magistrate Court v. Fleming, 284 Ga. 457, 667 S.E.2d 356 (2008).   RESEARCH REFERENCES   Am. Jur. 2d.   - 52 Am. Jur. 2d, Mandamus, § 49 et seq.   C.J.S.   - 55 C.J.S., Mandamus, §§ 63, 239.   ALR.    - Mandamus against municipality to compel improvement or repair of street or highway, 46 A.L.R. 257.    Duty and liability of governmental body responsible for condition of street or highway for injury or damage due to cracking or upheaval of surface, 111 A.L.R. 862.