STATE BOARD OF BARBER EXAMINERS et al.
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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.
[67 Ariz. 160] 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, [67 Ariz. 161] 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 ...