Poole v. State Board of Cosmetic Art Examiners
| Decision Date | 15 April 1942 |
| Docket Number | 454. |
| Citation | 19 S.E.2d 635,221 N.C. 199 |
| Parties | POOLE v. STATE BOARD OF COSMETIC ART EXAMINERS. |
| Court | North Carolina Supreme Court |
Civil action in nature of mandamus, heard upon demurrer to complaint.
Plaintiff in her complaint alleges in substance these facts:
(1) That prior to the enactment of the act to regulate the practice of cosmetic art in the State of North Carolina, P.L 1933, Chapter 179, she "practiced as a cosmetologist for reward and pay *** and was actually engaged in the practice of cosmetic art at the time of the effective date" of said act.
(2) That, in accordance with provisions of Section 20 of the act that all persons, who have been practicing cosmetic art in North Carolina, and who were practicing such art at the time of the effective date of the act, upon making affidavit to that effect, and complying with provisions of the act as to physical fitness, and paying the required fee to the Board of Cosmetic Art Examiners, required by said act as amended, P.L 1935, Chapter 54, P.L. 1941, Chapter 234, are entitled to certificate of registration as a registered cosmetologist she applied in due time to the Board of Cosmetic Art Examiners for such a certificate.
(3) That pertaining to her application she filed with, and on forms prepared by the said Board of Examiners the "usual affidavits as to her competency and experience, tendered the application fee as required by the Board, and in all respects complied with the law pertaining to such matters", and that "the Board *** unlawfully, arbitrarily, and without any just reason or excuse refused to grant the plaintiff her license as a registered cosmetologist to which she is justly entitled".
Upon these allegations plaintiff prays mandamus, and "for such other and further relief to which she may be entitled".
Defendants demur to complaint for that: (1) There is a misjoinder of parties defendant in that the individual defendants are not necessary or proper parties to the action, and (2) the complaint fails to state a cause of action in that it appears upon the face of it that the State Board of Cosmetic Art Examiners is a public board vested with quasi judicial and discretionary powers in the issuance of licenses to applicants to practice cosmetology in this State.
Upon hearing below the court sustained the demurrer and dismissed the action.
Plaintiff appeals to the Supreme Court and assigns error.
Thomas W. Ruffin and Ciera B. Holding, both of Raleigh, for plaintiff-appellant.
Jones & Brassfield, of Raleigh, for defendant-appellee.
It is well settled in this State that . Person v. Doughton, 186 N.C. 723, 120 S.E. 481, 482; White v. Holding, 217 N.C. 329, 7 S.E.2d 825, and cases there cited. See, also, Harris v. Board of Education, 216 N.C. 147, 4 S.E.2d 328; Champion v. Vance County Board of Health, 221 N.C. 96, 19 S.E.2d 239. Discretionary powers may not be controlled by mandamus. Harris v. Board of Education, supra.
Admitting the facts alleged in the complaint in the present action, which we must do in testing the sufficiency of a complaint challenged by demurrer, Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, White v. Holding, supra, and numerous other cases, does the plaintiff have a clear legal right to demand of defendants as and constituting the Board of Cosmetic Art Examiners the issuance to her of a certificate of registration as a registered cosmetologist? If so, are defendants under legal duty to issue it? The answer to each question is "Yes".
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