State Board of Barber Examiners v. Walker

• Citation: 192 P.2d 723,67 Ariz. 156
• Decision Date: 14 April 1948
• Docket Number: 5032,5031
• Parties: STATE BOARD OF BARBER EXAMINERS et al. v. WALKER
• Court: Supreme Court of Arizona

192 P.2d 723

67 Ariz. 156

STATE BOARD OF BARBER EXAMINERS et al. v. WALKER

Nos. 5031, 5032

Supreme Court of Arizona

April 14, 1948

[Copyrighted Material Omitted]

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Mandamus proceeding by Thelma L. Walker, doing business as Thelma's Barber & Beauty College, against the State Board of Barber Examiners for the State of Arizona, Omar Heitmeyer member and president, Vestor Henderson, member and vice president, and L. E. Moye, member and secretary, to require respondents to issue a certificate to operate a barber school. From judgment granting peremptory writ of mandamus and from an order denying respondents' application for a stay of proceedings, and a subsequent order directing certificate theretofore deposited with clerk of court to be delivered to petitioner, respondents appeal.

Judgment and orders affirmed.

John L. Sullivan, Atty. Gen., Perry M. Ling, Asst. Atty. Gen., and Francis J. Donofrio, Co. Atty., Warren L. McCarthy, Deputy Co. Atty., and Croaff & Croaff, all of Phoenix, for appellants.

Terrence A. Carson and Morris L. Gerst, both of Phoenix, for appellee.

Udall, Justice. Stanford, C. J., and La Prade, J., concur.

OPINION

Udall, Justice.

These two appeals were ordered consolidated. The first was from a judgment dated July 16, 1947, granting Thelma L. Walker, petitioner (appellee), a peremptory writ of mandamus directing the State Board of Barber Examiners, respondents (appellants), to forthwith issue to petitioner a certificate to operate a barber school; the second appeal was from (a) an order of the trial court entered July 21, 1947, in the same cause, denying respondents' application for a stay of proceedings, and (b) a subsequent order directing that the certificate theretofore deposited with the clerk of the court, in accordance with the terms of the judgment, be forthwith delivered to the petitioner.

The record shows that at the request of a group of 15 to 20 Negro veterans and with the active aid and assistance of Major Shaw, Training Officer at the Veterans Administration, the petitioner, who for some time previous had been operating an accredited beauty school, undertook to establish in Phoenix a certificated barber school. There was no barber school then operating in the entire State of Arizona, and many of these veterans were financially unable to go, as was suggested by one of the respondents, to California where such training could be had. Chapter 67, article 1, A.C.A.1939, expressly provides for the establishment of such schools, and the G. I. Bill of Rights, 38 U.S.C.A. § 701, gives to all veterans monetary assistance in procuring "on the job training." Doubtless these particular veterans and their governmental advisers felt that with a Negro population in the Phoenix area of 11,000 and only four shops operated by members of their race an opportunity for gainful employment was presented. This school was subsequently approved by the Veterans Institutional and On The Job Training Council.

Petitioner's efforts to obtain a certificate, which began February 3, 1947, were all abortive; hence, on June 20, 1947, she filed with the Superior Court of Maricopa County the instant petition for a writ of mandamus. The matter came on regularly for trial on its merits on July 3, 1947, before the court sitting without a jury.

Respondents assign as error the denial of their motion to dismiss the petition and to quash the alternative writ of mandamus for the reason that they assert no justiciable question or controversy was presented, and, hence, no relief could properly be granted; i. e., that the petition failed to show a clear legal right to petitioner and a corresponding duty in law of respondent board to grant a certificate for a barber school. Particularly, objection is made to the fact that the petition does not show a refusal by respondents to issue the certificate, it being their contention that the petitioner had not exhausted her remedy at law in that she must await a ruling by the Board and then appeal therefrom if it was adverse. They further contend that while the court might in proper circumstances order the Board to act, it could not direct them how to act.

These various contentions go to the heart of the questions raised on this appeal, the details of which will be developed as we proceed. While as a matter of law it is true that to justify the issuance of a writ of mandamus a refusal to perform the duty imposed must clearly appear; that refusal need not in all cases be an outright adverse determination. The rule as to what constitutes refusal is succinctly set forth in 38 C.J., Mandamus, section 54, page 580.

"While it must clearly appear that the party withholds compliance and distinctly determines not to do what is required, the refusal may be either express or implied. Any conduct on the part of the officer or tribunal under a duty to perform signifying unequivocal intention not to do so amounts to a refusal. A refusal may be implied from a colorable or unreasonable delay in acting, although a proper and reasonable postponement of action, made in good faith, does not constitute a refusal to act. * * *"

The petition sets forth the matters which are primarily relied upon as justification for the equitable relief of mandamus. It is affirmatively asserted that the acts of the respondent Board in failing to issue the license were arbitrary, capricious, and deliberately wilful and in this respect deprived petitioner of her right to earn a livelihood, thereby denying her the equal privileges, immunities, and protection of the law as guaranteed by the Federal and State Constitutions. Const.U.S. Amend. 14, Const.Ariz. art. 2, § 4.

We deem it unnecessary to set forth the contents of the petition haec verba; suffice it to say that we have carefully examined this lengthy pleading and believe that it does sufficiently allege a compliance by the petitioner with all of the requirements of law prerequisite to the issuance of the certificate and sufficient to warrant the issuance of an alternative writ of mandamus. There is no merit to this assignment.

It was error, however, for the court to deny respondents' motion to strike many portions of the petition as we agree with their counsel that the petition contains much that is "argumentative, verbose and prolix." The rule, however, is that where as here a matter is being tried to the court, greater latitude is given the trial court in exercising its sound discretion in ruling upon motions to strike, and it is only when the moving party can show that he was greatly prejudiced by a retention of the allegations that an abuse of discretion amounting to reversible error is shown. MacNeil v. Vance, 48 Ariz. 187, 193, 60 P.2d 1078; 49 C.J., Pleading, sections 1028 and 1029, pages 725, 726. No such showing was here made.

The petitioner by a cross assignment of error attacks the ruling of the trial court denying her motion to strike the answer and other pleadings of the respondents by challenging the right of the County Attorney of Maricopa County and of counsel (Croaff & Croaff) privately employed to appear for the respondents, it being her contention that their purported appearance and active conduct of the case render the entire proceedings, insofar as the Board is concerned, absolutely void, and constitute no appearance. Principal reliance is upon the statute prescribing that:

"The attorney-general shall be the legal advisor of all departments of the state, and shall give such legal service as such departments may require. With the exception of the industrial commission, no official, board, commission, or other agency of the state, other than the attorney-general, shall employ any attorney or make any expenditure or incur any indebtedness for legal services. The attorney-general may, when the business of the state requires, employ assistants." Section 4-503, A.C.A.1939.

The record before us shows that from its inception the respondents have at all times recognized the Attorney General as being in control of the litigation in that his name appears, along with other counsel, on all pleadings, briefs, etc., and that a representative of that office was present during the trial of the case, at the subsequent hearings, as well as appearing before this court. The County Attorney's staff seek to justify their appearance by the fact that the statute, section 67-120(d, e), A.C.A.1939, makes it their duty to represent the Barber Board on appeals, and state that this was considered by them to be in the nature of an appeal. The prohibition against employment of private counsel, section 4-503, supra, by any board or commission is directed primarily against incurring any public expense for outside counsel; i. e., to protect the treasury against duplication of salaries and to provide a place where all officers could obtain legal advice and services if they so required. State v. Hendrix, 59 Ariz. 184, 124 P.2d 768. There is not the slightest evidence that private counsel procured by respondents are to be compensated from public funds, as indeed they could not be. However, any possible objection to the appearance of the County Attorney and private counsel in this case was overcome when the trial court, in the exercise of its discretion, granted the motion of the Attorney General that they be entered as associate counsel with him in the case. This cross assignment is wholly without merit.

The Barber Code, article 1, chapter 67, A.C.A.1939, lays down certain requirements for the establishment and operation of a barber school: (1) At all times it is to be operated under the personal supervision and management of a registered barber, section 67-102(4); (2) there must be taught therein "the...