Wood v. Board of Education , 1912 Ga. LEXIS 157 ( 1912 )

Lumpkin, J.

(After stating the foregoing facts.) It is declared by the code of this State that mandamus does not lie “to a public officer who has an absolute discretion to act or not, unless there is a gross abuse of such discretion; but it is not confined to the enforcement of mere ministerial duties.” Civil Code (1910), § 5441. “Ordinarily the writ of mandamus is a remedy for official inaction. It does not lie to control the conduct of an officer vested with a discretion, except where the exercise of that discretion has been so capricious or arbitrary as to amount to a gross abuse.” City of Atlanta v. Wright, 119 Ga. 207 (45 S. E. 994); Patterson v. Taylor, 98 Ga. 646 (25 S. E. 771); Dale v. Barnett, 105 Ga. 259 (31 S. E. 167).

At least ninety days before the day of election for county school commissioner, it is required by law that all candidates shall be examined by the president of the county board, or by some one appointed by him or the board for that purpose, upon written or printed questions, which shall be furnished to the board by the State school commissioner. The general subjects to be covered by the examination are stated, and it is declared that “all applicants standing said examination shall be required to make 85 per cent, in said examination before they shall be declared eligible to hold the office of county school commissioner by said board of education. Those who fail to make the per cent, shall, by the board, be declared ineligible to hold said office of county school commissioner.” No exact basis or method of grading the examination papers is prescribed. This is left, to a considerable extent, to the sound discretion of the board. Indeed it might be very difficult to prescribe by legislative enactment any exact system by which the answer to a given question should be graded. An applicant may answer the question partly correctly, and yet not entirely so. Shall his answer be rejected altogether, because not perfect? Or shall it be accepted as perfect, when it is not so? Or how can a legislature or a court declare, in such a case, the exact percentage which shall be allowed for the answer? Suppose that a problem in mathematics should be given, and the applicant should adopt the correct method of solution, and correctly pursue it throughout, except that in some final addition or division he should make a slight error, can a legislature, or a court, or a jury determine with precision how such an answer shall be graded, or what mark shall be placed upon it? Necessarily, a considerable latitude of discretion must be involved in such cases. Sometimes a question must be answered so categorically that the answer is essentially entirely right, or entirely wrong; •but many questions are not of that character. A jury of the vicinage, though composed of “good men and true,” and sworn 'a true verdict to make according to the evidence, might find no small difficulty in supervising the grading fixed upon the answers by the board and the declaration by them of the average mark which had been attained by the candidates.

Much evidence was introduced as to the manner in which a gradation of the examination papers had been reached, and as to whether the final declaration was correct. The charge of the court was in substantial accord with the law as above declared. There may have been some slight departure from perfect verbal accuracy, but there was nothing of such a character as to require a reversal. Courts and juries will not undertake to merely supervise and declare erroneous every discretionary decision of the board of education in regard to an examination. We do not think that the evidence was ■of such a character as to require a finding that the board of education exercised their discretion so capriciously or arbitrarily as to ■amount to a gross abuse. Nor were any of the complaints made of excerpts from the charge of the court, or of omissions to charge certain things, such as to require a new trial.

Judgment affirmed.

All the Justices concur.