Tucker v. Wilson

• Decision Date: 06 October 1944
• Docket Number: 15038.
• Parties: TUCKER et al. v. WILSON, Secretary of State.
• Court: Georgia Supreme Court

31 S.E.2d 657

198 Ga. 474

TUCKER et al. v. WILSON, Secretary of State.

No. 15038.

Supreme Court of Georgia

October 6, 1944

Rehearing Denied Oct. 17, 1944.

Syllabus by the Court.

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 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.

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 did refuse 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: (1) Because the petition sets out no cause of action; (2) 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; (3) the petition fails to allege a clear legal right on the part of the petitioners to require the act done which is sought to have performed.

The exception is to an order sustaining the above grounds of demurrer and dismissing the petition.

H. A Allen, of Atlanta, for plaintiffs in error.

T. Grady Head, Atty. Gen., and R. A. McGraw and Victor Davidson, Asst. Attys. Gen., for defendant in error.

ATKINSON, Justice (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 the powers to prescribe the duties and...