State Ex Rel. Associated Cosmetologists of North Carolina, Inc. v. Ritchie

The plaintiff procured permission from the Attorney-General, as required by law, to institute this action: The complaint is as follows: "1. That the plaintiff is a corporation created, organized and existing under and by virtue of the laws of North Carolina, having its principal place of business in the city of Winston-Salem, N.C.; that said corporation is a nonstock and nonprofit corporation created for the purpose of furthering the best interests of the Cosmetologists of North Carolina in all lawful and proper ways, and particularly with respect to their rights and duties under and by virtue of chapter 179, Public Laws of 1933, hereinafter more particularly referred to, and that membership in said corporation is limited to Cosmetologists in the State of North Carolina. "2. That the defendants, Arthur T. Ritchie and L. L. Smithey, are citizens of the State of North Carolina, and at the present time reside in the city of Raleigh. "3. That the Legislature of North Carolina, at the session of 1933, passed an act to regulate the practice of cosmetic art in the State of North Carolina, said act being chapter 179, of the Public Laws of said session; that section 13 of said act provides for the appointment of a State Board of Cosmetic Art Examiners to consist of three persons, said section being in words and figures as follows: `A board to be known as the State Board of Cosmetic Art Examiners is hereby established to consist of three members appointed by the Governor of the State. Each member shall be an experienced cosmetologist, who has followed the practice of cosmetic art for at least five years next preceding his or her appointment, in the State. The members of the first board appointed shall serve for three years, two years, and one year respectively, after appointment, and members appointed thereafter shall serve for three years. The Governor, at his option, may remove any member for good cause shown and appoint members to fill unexpired terms.' "4. That under and by virtue of said act, and more particularly of section 13 thereof fully set out in the preceding paragraph, his Excellency, the Governor of the State of North Carolina, on or about the ........ day of July, 1933, appointed as members of said State Board of Cosmetic Art Examiners, Arthur Ritchie and L. L. Smithey, the defendants herein, and the said Arthur T. Ritchie and L. L. Smithey have attempted to qualify as members of said board and have entered upon the discharge of their official duties. "5. That as this plaintiff is informed and believes and therefore alleges neither the said Arthur T. Ritchie nor L. L. Smithey are experienced cosmetologists who have followed the practice of the cosmetic *Page 810 art for the last five years next preceding their appointment, in the State; that on the other hand, as this plaintiff is informed and believes, and therefore alleges, the said Arthur T. Ritchie and L. L. Smithey are totally ignorant of the cosmetic art and as a matter of fact are and have been for a number of years engaged in following the business of barbering. "6. That as this plaintiff is informed and believes, and therefore alleges, the said Arthur T. Ritchie and L. L. Smithey are not qualified under the terms of said chapter 179, of the Public Laws of 1933, to act as members to the State Board of Cosmetic Art Examiners for the reason that they cannot comply with the provisions of said act and more particularly with those of section 13 of said act, and that their attempted appointment is null, void and of no effect. "Wherefore, this plaintiff prays that the offices occupied by the said Arthur T. Ritchie and L. L. Smithey be declared vacant, and that the said Arthur T. Ritchie and L. L. Smithey be forthwith removed from membership on said Board of Cosmetic Art Examiners." The defendants filed a demurrer as follows: "1. For that the complaint does not state facts sufficient to constitute a cause of action against the defendants. "2. For that the court in which the action is instituted has no jurisdiction to hear and determine this controversy. "3. For that section 13, of chapter 179, of the Public Laws of 1933, provides for the method of removal of the members of the board created under said act and gives to the Governor of North Carolina the power at his option to remove for good cause shown any member of said board. The matters and things set forth in the complaint have already been presented to the Governor of North Carolina on a motion to remove the defendants for cause and the Governor has taken action on said motion and refused to remove the defendants. "Wherefore, the defendants pray that this action be dismissed and that they recover their costs." After hearing the argument it was "ordered and adjudged by the court that the demurrer be and the same is hereby sustained, and this action is dismissed." etc. From the foregoing judgment the plaintiff appealed. Can the plaintiff maintain this action upon the allegations of the complaint? This suit is instituted for the purpose of vacating an alleged office held by the defendants as members of the State Board of Cosmetic Art *Page 811 art for the five years next preceding their appointment, in the State; that on the other hand, as this plaintiff is informed and believes, and therefore alleges, the said Arthur T. Ritchie and L. L. Smithey are totally ignorant of the cosmetic art and as a matter of fact are and have been for a number of years engaged in following the business of barbering. "6. That as this plaintiff is informed and believes, and therefore alleges, the said Arthur T. Ritchie and L. L. Smithey are not qualified under the terms of said chapter 179, of the Public Laws of 1933, to act as members to the State Board of Cosmetic Art Examiners for the reason that they cannot comply with the provisions of said act and more particularly with those of section 13 of said act, and that their attempted appointment is null, void and of no effect. "Wherefore, this plaintiff prays that the offices occupied by the said Arthur T. Ritchie and L. L. Smithey be declared vacant, and that the said Arthur T. Ritchie and L. L. Smithey be forthwith removed from membership on said Board of Cosmetic Art Examiners." The defendants filed a demurrer as follows: "1. For that the complaint does not state facts sufficient to constitute a cause of action against the defendants. "2. For that the court in which the action is instituted has no jurisdiction to hear and determine this controversy. "3. For that section 13, of chapter 179, of the Public Laws of 1933, provides for the method of removal of the members of the board created under said act and gives to the Governor of North Carolina the power at his option to remove for good cause shown any member of said board. The matters and things set forth in the complaint have already been presented to the Governor of North Carolina on a motion to remove the defendants for cause and the Governor has taken action on said motion and refused to remove the defendants. "Wherefore, the defendants pray that this action be dismissed and that they recover their costs." After hearing the argument it was "ordered and adjudged by the court that the demurrer be and the same is hereby sustained, and this action is dismissed." etc. From the foregoing judgment the plaintiff appealed.