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State Bd. of Technical Registration v. Bauer

Supreme Court of Arizona

May 28, 1958

Donald Burns BAUER, Appellee.

Rehearing Denied June 24, 1958.

Page 359

[84 Ariz. 238] Robert Morrison, Atty. Gen., and Robert G. Mooreman, Sp. Asst. Atty. Gen., for appellants.

Botsford & Turner, Scottsdale, for appellee.

UDALL, Chief Justice.

This is an appeal from a judgment of the superior court ordering a peremptory writ of mandamus to issue to appellant-State Board of Technical Registration. Therein said Board was directed to issue to appellee-Donald Burns Bauer a certificate of registration authorizing him to practice the profession of architecture.

A motion for stay of execution was denied, the writ issued, and pursuant thereto the Board issued to appellee a specially printed certificate of registration. Thereafter an order was obtained by appellee for the Board to appear and show cause why they should not be held in contempt on the ground issuance of the specially printed certificate was not compliance with the directives of the writ. After a hearing, the order to show cause was quashed and a notice of cross-appeal therefrom was filed. Herein the parties will be referred to as appellant or Board and as appellee. The statute A.R.S. §§ 32-101 to 32-145, inclusive, under which this action was brought, will be referred to as the Act.

The record discloses appellee requested of the Board the necessary forms upon which to file his application for registration to practice architecture. These forms were mailed to him. The application was filled out and mailed by appellee and received and handled routinely by the Board. Thereafter appellee was notified he was 'to [84 Ariz. 239] be held for a written examination in architecture', the same to be given three months hence.

Appellee advised the Board he refused to take the examination for the reason that the credentials submitted by him fully met the statutory requirements for registration, i. e., he was entitled to a waiver of examination upon his record 'of having engaged in architectural work for the last 16 years.'

The Board notified appellee that their original decision still stood and they would notify him two weeks prior to the examination. Thereafter he filed a complaint in superior court praying for a peremptory writ of mandamus, with the result heretofore stated. At the court hearing it was stipulated by the parties that if appellee had successfully completed the examination the Board would have issued him a certificate of registration.

This is a companion case to State Board of Technical Registration v. McDaniel, 84 Ariz. 223, 326 P.2d 348 and State of Arizona v. Beadle, 84 Ariz. 217, 326 P.2d 344. All three cases were consolidated for oral argument as they each involve some phase of the Technical Registration Act. We shall, therefore, refrain from repeating any pronouncements made in the other decisions that are pertinent and applicable to similar questions presented in this case.

The trial court was faced with alternative counts in the complaint, it being alleged that: (1) the Board abused its discretion in refusing to issue the certificate, and (2) if the statute was broad enough to permit the Board to so act then the Act was unconstitutional in that it denied due process and was an unlawful delegation of legislative power. The court below necessarily found the Act constitutional in ordering the Board to issue the certificate 'as required by law'. Appellee seems satisfied to rest on this finding as he states in his brief:

'The Superior Court having impaled the Board upon the abuse-of-discretion horn, we need not examine the effect of the alternative (constitutional) proposition.'

Page 360

(Parenthetical expression supplied.)

Hence there being no contention that the Act is unconstitutional, we will not decide such issue. County of Maricopa v. Anderson, 81 Ariz. 339, 306 P.2d 268.

We first consider whether the trial court erred, as a matter of law, in determining that mandamus was the proper remedy. It is well settled in this jurisdiction, by statute and court decisions interpreting same, that mandamus will only lie to compel the performance of a ministerial act which the law specially imposes as a duty resulting from an office, when there is no plain, speedy and adequate remedy at law. A.R.S. § 12-2021; Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436; Adams v. Bolin, [84 Ariz. 240] 77 Ariz. 316, 271 P.2d 472. In Graham v. Moore, 56 Ariz. 106, 105 P.2d 962, it was held that mandamus is an extraordinary and expeditious legal remedy which proceeds on the assumption that the applicant has an immediate and complete legal right to the thing demanded.

Whether appellee had an immediate and complete legal right to the certificate demanded depends upon the answer ...

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