Associated Cosmetologists v. . Ritchie , 206 N.C. 808 ( 1934 )

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 Examiners as described in chapter 179, of the Public Laws of 1933. The gravamen of the action is that the defendants are not qualified to hold the office by virtue of the fact that they do not possess the express and unequivocal qualifications prescribed by statute, and this fact is admitted by the demurrer. Notwithstanding, the courts cannot hear a person who is not the party aggrieved and who has no interest in the subject-matter of the action.

What interest then, has the plaintiff in the subject-matter of this action?

It is alleged in the complaint that the plaintiff is a corporation of North Carolina with an office in Winston-Salem. It is not alleged that the plaintiff is a taxpayer of Wake County, or even of North Carolina, or a voter of the State. It does not appear upon the face of the complaint how the plaintiff corporation is affected by or interested in the Board of Cosmetic Art Examiners. While it is alleged generally in the complaint that membership in the plaintiff corporation is limited to cosmetologists, it does not appear that all cosmetologists are members nor as to how membership is acquired.

The right to maintain an action to vacate an office is not dependent upon the fact that the relator or plaintiff is entitled to the office or any of its emoluments. Nevertheless, a party cannot maintain a suit in which he has no interest. This idea was expressed in Hines v. Vann,118 N.C. 3, as follows: "The defendant was entitled to have the allegation showing the relator's interest which would entitle him to maintain the action set out in the complaint so that, by proper denial or demurrer, the defendant could have the fact found by the jury or the ruling on the law reviewed by appeal. The relator is the real party plaintiff and the courts have never gone to the extent of permitting him to maintain an action in which he had no interest."

Again, it has been held in Jones v. Riggs, 154 N.C. 281,70 S.E. 465, that "quo warranto as to an office can be brought upon leave of the Attorney-General by any citizen who is a qualified voter and taxpayer of a municipal corporation, or any jurisdiction over which the officer whose title is questioned exercises his duties and powers, though the relator is not himself a contestant for the office. But this is on the ground that he is a party in interest and has a direct interest in having the office occupied only by an officer who is entitled to it." To like effect is the statement of law in Houghtalling v. Taylor, 122 N.C. 141, 29 S.E. 101, as follows: "In such case the plaintiffs, having no direct personal interest in the action, must show that they have some public interest to be affected or that may be affected by the defendants being allowed to hold said office, that is, that they are residents and taxpayers in the county where the defendants are holding and exercising the office. This may seem to be a technical objection, but it is not. If this were not the law, our best people, elected to office beyond all doubt, might be annoyed and vexed by persons from other counties or even from other states, who had not the slightest interest in the office or in the public good." The last utterance of the Court occurs in Bouldin v. Davis, 197 N.C. 731,150 S.E. 507. The Court said: "A relator need not be a contestant for the office, but he must be a citizen and taxpayer within the jurisdiction over which an incumbent of the contested office exercises the functions prescribed by law." See, also, Saunders v. Gatling, 81 N.C. 298; Ellisonv. Raleigh, 89 N.C. 125; Foard v. Hall, 111 N.C. 369, 16 S.E. 420.

Therefore, as the complaint does not disclose such interest as the law requires, in cases of this type, the ruling of the trial judge was correct.

Affirmed.