2021 Georgia Code
Title 9 - Civil Practice
Chapter 6 - Extraordinary Writs
Article 2 - Mandamus
§ 9-6-20. When Mandamus May Issue

All official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights; provided, however, that no writ of mandamus to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.

(Orig. Code 1863, § 3130; Code 1868, § 3142; Code 1873, § 3198; Code 1882, § 3198; Civil Code 1895, § 4867; Civil Code 1910, § 5440; Code 1933, § 64-101; Ga. L. 2009, p. 643, § 1/HB 221.)

The 2009 amendment, effective July 1, 2009, substituted a comma for a semicolon near the beginning, deleted a comma following "performance" in the middle, and added the proviso at the end.

- Petitioning for mandamus to compel auditor in superior court to certify exceptions to report of auditor, § 9-7-15.

Applications for mandamus, Rules of the Court of Appeals of the State of Georgia, Rule 31.

- For article discussing the inefficiency of mandamus and impeachment as remedies for judicial inaction, see 5 Ga. St. B.J. 467 (1969). For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For article, "A Taxing Exception: Southern LNG, Inc. v. MacGinnitie's Narrow Interpretation of the Mandamus Exception," see 66 Mercer L. Rev. 855 (2015).

ANALYSIS

• General Consideration
• Applicability to Specific Cases

This section authorizes remedy of mandamus where official's discretion has been arbitrarily and capriciously exercised so as to constitute gross abuse of discretion. 1971 Op. Att'y Gen. No. 71-168.(see O.C.G.A. § 9-6-20).

Officers must keep their offices open at sufficient times to discharge their duties whether or not there is a statute which requires a particular office to be open at specific times. 1969 Op. Att'y Gen. No. 69-497.

Inadequacy of appropriated funds does not excuse duty of public official to exercise due diligence to perform the official's responsibilities. 1975 Op. Att'y Gen. No. 75-59.

- A public official of this state will be excused from carrying out an official duty upon failure of the General Assembly to appropriate funds for performance, if, but only if, the official is able to show that the resulting lack of funds, together with an inability to obtain the same, make performance impossible; failure of the General Assembly to appropriate moneys for a specific official duty might not justify a failure to perform where the official has received a general appropriation and could divert a portion thereof to carry out the official's statutory or official duty. 1969 Op. Att'y Gen. No. 69-174.

- An interdepartmental council created by an Act of the General Assembly is excused from carrying out its official duties upon failure of the General Assembly to appropriate funds for performance of said duties, if, but only if, this resulting lack of funds rendered performance impossible; the court would have the power to determine whether the mandatory duties of the council could be performed or not. 1969 Op. Att'y Gen. No. 69-184.

- A petition for writ of mandamus brought by a taxpayer or member of the motoring public is the proper method to enforce compliance with the statute requiring the marking of official vehicles. 1965-66 Op. Att'y Gen. No. 65-49.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Mandamus, § 1 et seq.

17 Am. Jur. Pleading and Practice Forms, Mandamus, §§ 2, 136.

- 55 C.J.S., Mandamus, § 51 et seq.

- Election of remedies as between mandamus and an action for damages, 1 A.L.R. 1698.

Mandamus to compel court to assume or exercise jurisdiction where it has erroneously dismissed the cause or refused to proceed on the ground of supposed lack of jurisdiction, 4 A.L.R. 582; 82 A.L.R. 1163.

Mandamus to compel a court to take jurisdiction of a cause that it has erroneously dismissed for supposed insufficiency or lack of service, 4 A.L.R. 610.

Inadequacy of remedy by appeal or writ of error as affecting right to mandamus to inferior court, 4 A.L.R. 632.

Mandamus to compel a court to reinstate or proceed with the hearing of an appeal that it has erroneously dismissed, 4 A.L.R. 655.

Mandamus to compel payment of salary of public officer or employee, 5 A.L.R. 572.

Mandamus to enforce performance of public duty by officer who is subject to penalty, fine, or imprisonment, 19 A.L.R. 1382.

Contempt for disobedience of mandamus, 30 A.L.R. 148.

Unconstitutionality of statute as defense to mandamus proceeding, 30 A.L.R. 378; 129 A.L.R. 941.

Unfitness as affecting right to restoration by mandamus to office from which one has been illegally removed, 36 A.L.R. 508.

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432.

Mandamus to compel institution of proceedings to oust public officer, 51 A.L.R. 561.

Remedy by mandamus of creditor against officer who fails to levy under execution, 57 A.L.R. 836.

Mandamus to compel collection of taxes, 58 A.L.R. 117.

Enforceability by mandamus of right to inspect public records, 60 A.L.R. 1356; 169 A.L.R. 653.

Mandamus to compel general course of conduct or performance of continuing duty or series of acts, 64 A.L.R. 975.

Power, right, or duty of a court of equity to supervise or direct performance of duties of tax assessors, 78 A.L.R. 693.

Mandamus to compel consideration, acceptance, or rejection of bids for public contract, 80 A.L.R. 1382.

Mandamus to compel appropriation for payment of salary of public officer or employee, 81 A.L.R. 1253.

Mandamus as proper remedy to compel service by public utility, 83 A.L.R. 947.

Mandamus to put one in possession of office title to which is in dispute, 84 A.L.R. 1114; 136 A.L.R. 1340.

Sufficiency of allegations as regards omitted or underassessed property in petition for mandamus to compel assessment, 85 A.L.R. 1315.

Right of several having similar interests to join as relators in mandamus proceeding, 87 A.L.R. 528.

Mandamus to compel court or official to approve bond proffered in legal proceedings, 92 A.L.R. 1211.

Mandamus as a proper remedy for return of a tax illegally or erroneously exacted, 93 A.L.R. 585.

Mandamus to compel delivery of papers and records to private corporation, 93 A.L.R. 1061.

Mandamus to restore license as proper remedy where professional license has been wrongfully revoked, 95 A.L.R. 1424.

Mandamus to compel payment of state, county, municipal, or quasi municipal corporation warrant, 98 A.L.R. 442.

Right to and necessity of amendment of alternative writ of mandamus to conform to peremptory writ, 100 A.L.R. 404.

Change of incumbent of office or of personnel of board or other official body as affecting mandamus proceeding previously commenced, 102 A.L.R. 943.

Mandamus to governor, 105 A.L.R. 1124.

Determination of canvassing boards or election officials as regards counting or exclusion of ballots as subject of review by mandamus, 107 A.L.R. 618.

Court's control over mandamus as means of avoiding the enforcement of strict legal right to the detriment of the public, 113 A.L.R. 209.

Public officer or board as proper relator in mandamus proceeding to enforce duty owed primarily to individual or to other political unit or public authority, 113 A.L.R. 589.

Right to an alias writ of mandamus where a peremptory writ previously granted has been disobeyed wholly or in part, 114 A.L.R. 1286.

Mandamus as taxpayer's remedy in respect of valuation of property for taxation, 131 A.L.R. 360.

Mandamus to members or officer of Legislature, 136 A.L.R. 677.

Judicial review of decision upon application for license to practice within state by physician or surgeon from another state or country, 136 A.L.R. 742.

Mandamus to put one in possession of office title to which is in dispute, 136 A.L.R. 1340.

Mandamus to compel reinstatement of suspended or expelled members of labor union, 141 A.L.R. 617.

Right to mandamus as affected by loss of other remedy, 145 A.L.R. 1044.

Right of writ of mandamus as affected by a pending action or proceeding, or existence of injunction, to which relator is not a party, 148 A.L.R. 210.

Right to go behind money judgment against public body in a mandamus proceeding to enforce it, 155 A.L.R. 464.

Mandamus as subject to statute of limitations, 155 A.L.R. 1144.

Discretion of appellate court to refuse exercise of its original jurisdiction to issue writs of mandamus, 165 A.L.R. 1431.

Legislature's express denial of right of appeal as affecting right to review on the merits by certiorari or mandamus, 174 A.L.R. 194.

Suspension or expulsion from social club or similar society and the remedies therefor, 20 A.L.R.2d 344.

Suspension or expulsion from professional association and the remedies therefor, 20 A.L.R.2d 531.

Mandamus to compel judge or other officer to grant accused bail or to accept proffered sureties, 23 A.L.R.2d 803.

Remedies to compel municipal officials to enforce zoning regulations, 35 A.L.R.2d 1135.

Mandamus or prohibition as remedy to enforce right to jury trial, 41 A.L.R.2d 780.

Mandamus as remedy to compel assertedly disqualified judge to recuse self or to certify his disqualification, 45 A.L.R.2d 937; 56 A.L.R. Fed. 494.

Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903, 34 A.L.R.4th 457.

Availability of mandamus or prohibition to review order of reference to master or auditor, 76 A.L.R.2d 1120.

Stay or supersedeas on appellate review in mandamus proceeding, 88 A.L.R.2d 420.

Compelling admission to membership in professional association or society, 89 A.L.R.2d 964.

Mandamus to compel ascertainment of compensation for property taken or for injuries inflicted under the power of eminent domain, 91 A.L.R.2d 991.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case, 93 A.L.R.2d 802.

Availability of mandamus or prohibition to compel or to prevent discovery proceedings, 95 A.L.R.2d 1229.

Judgment granting or denying writ of mandamus or prohibition as res judicata, 21 A.L.R.3d 206.

Mandamus to compel disciplinary investigation or action against physician or attorney, 33 A.L.R.3d 1429.

Mandamus to compel zoning officials to cancel permit granted in violation of zoning regulation, 68 A.L.R.3d 166.

Mandamus as remedy to compel disqualification of federal judge, 56 A.L.R. Fed. 494.