Summary
In Lee Optical, the plaintiff State Board of Optometry brought a quo warranto action against the defendant, Lee Optical, to prevent it from engaging in the "unlawful practice of optometry."
Summary of this case from Wynn v. Philip Morris, Inc.Opinion
1 Div. 673.
September 23, 1971.
Appeal from the Circuit Court, Mobile County, in Equity, Roy Mayhall, Special Judge.
Gary P. Alidor, Mobile, for appellant.
An amendment which changes the character of the complainant from a representative capacity to an individual capacity does not operate to work a complete change of parties complainant. Ex parte Kelen, 223 Ala. 87, 134 So. 856. When an action is brought by the State of Alabama on relation or on the information of a party, the relator is a party to the proceedings. Corprew v. Tallapoosa County, 241 Ala. 492, 3 So.2d 53. The State Board of Optometry is not an entity apart from the State of Alabama. Consolidated Ind. Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566. The State Bd. of Optometry is a public body having authority conferred by statute to regulate or to license the activity of the practice of optometry. Code of Alabama, Title 46, § 194 et seq.; State Bd. of Optometry v. Lee Optical Co. of Ala., Inc., et al., 284 Ala. 562, 226 So.2d 623. In Equity, the impropriety of an amendment as working a complete change of parties complainant is tested by motion to strike or demurrer and does not work a discontinuance. McCrory v. Guyton, 164 Ala. 365, 51 So. 312.
Howell, Johnston, Langford Finkbohner, Mobile, Douglas E. Bergman, Bergman Hicks, Dallas, Tex., for appellees.
A suit brought in a name which is not that of a natural person, a corporation, or of a partnership is a mere nullity; in such a case it has been held that the whole action fails. 67 C.J.S. Parties § 4, at 897; Smith v. Commissioners of Roads and Revenue of Glynn County, et al., 198 Ga. 322, 31 S.E.2d 648. Where an action as originally begun is a nullity, there can be no substitution of parties. 67 C.J.S. Parties § 85a., at 1075. A complaint brought in the name of a plaintiff which is neither a natural nor an artificial person is a nullity which cannot be amended. 67 C.J.S., Parties § 156a., at 1157; Smith v. Commissioners of Roads and Revenue of Glynn County, et al., 198 Ga. 322, 31 S.E.2d 648. It is familiar learning that public bodies or subdivisions of the state, or agencies of the state, have only such powers as are conferred upon them by law, and, unless the statute gives the power to sue and be sued, such boards or bodies have not the power to sue or be sued. Miss. Live Stock Sanitary Bd. v. Williams, 133 Miss. 98, 97 So. 523; Personnel Bd. of Mobile County v. City of Mobile, 264 Ala. 56, 84 So.2d 365; Consolidated Ind. Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566. The effect of Act No. 509, approved September 7, 1967, Acts of Alabama 1967, Vol. II, p. 1225, was to constitute the State Bd. of Optometry retroactively with the status of a legal entity separate and apart from that of the State of Alabama and with a right to sue in its own name. State Bd. of Optometry v. Lee Optical Co. of Ala., 284 Ala. 562, 226 So.2d 623. Political subdivisions of a state such as Boards which are given independent authority to sue and be sued are not the same as the state itself. State v. Doucet, 203 La. 743, 14 So.2d 622; State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216. The limitation on the right to amend a bill in equity includes the limitation that the amended bill shall not work an entire change of parties. Benton v. Benton, 214 Ala. 321, 107 So. 827 (headnotes 5-7). A suit brought in the name of the state on relation of a relator in the nature of a quo warranto proceeding is a suit solely in the name of a state and the relator is not party to such proceedings. Baxter v. State, 243 Ala. 120, 9 So.2d 119. A motion for a discontinuance is a recognized remedy where an amendment works a complete change of parties. Berry v. McGravie, 273 Ala. 248, 139 So.2d 317 (and cases cited under headnote 1 at 320 of 139 So.2d).
The question on this appeal is whether there was a complete change of parties when a bill of complaint styled the "State of Alabama ex rel State Board of Optometry" was amended to make "State Board of Optometry" the sole complainant.
We conclude that this question must be answered in the negative and that the decree of the circuit court in holding to the contrary and in dismissing the bill was in error and must be reversed.
The original bill was filed November 9, 1965 and was styled "State Board of Optometry, Complainant v. Lee Optical Company of Alabama, Inc. * * *" et al., Respondents. It sought to enjoin respondents "from the unlawful practice of optometry." Respondents demurred to this bill. Among the grounds advanced was that the Board was not a legal entity capable of filing suit in its own name. Demurrer was sustained by the trial court although no reason for its decision appears in its decree. By amendment, the "State of Alabama ex rel State Board of Optometry" was made the complainant. Respondents again demurred contending that the amendment substituted the State of Alabama for the Board as complainant and thereby worked a complete change of parties. On September 16, 1966, the trial court sustained the demurrer without giving any reason for its decision. Complainant made no attempt to amend again until after the legislature passed Act No. 509, approved September 7, 1967, Acts of Alabama 1967, Vol. II, page 1225 (Title 7, § 1063(1), Code of Alabama 1940, as amended). Then, on January 13, 1970, the complainant again amended striking the caption and substituting "State Board of Optometry" (the original complainant) as the complainant in the amended bill. Motion to dismiss the bill on grounds that this amendment worked a complete change of parties was granted by the trial court and a final decree was entered, dismissing the bill of complaint. The decree states that "* * * the Amendment works a complete change of parties * * *." It is from this decree that the appeal is taken.
Under this act "the State Board of Optometry and similar regulating bodies [are given] the right to institute proceedings in the courts of this state to enjoin persons and corporations from the 'unauthorized or unlawful practice of any profession, occupation, or calling.' " State Board of Optometry v. Lee Optical Co. of Ala., 284 Ala. 562, 564, 226 So.2d 623, 625 (1969). (The retrospective application of this statute was there upheld.)
The position of appellees (respondents) may be summarized as follows. The State of Alabama and the State Board of Optometry are separate and distinct entities and therefore constitute two completely different parties to this suit. The first amendment entirely removed the Board from the suit and substituted in its place the State of Alabama, working a complete change of parties. The second amendment eliminated the State as a party and substituted the Board, working a second complete change of parties.
We cannot agree with appellees' contentions. In the first place, the propriety of the first amendment is not before us. We are concerned solely with whether the trial court's decree was correct in dismissing the bill because the second amendment worked a complete change of parties.
We thus consider if striking the caption "State ex rel" etc., and substituting "State Board of Optometry" worked a complete change of parties.
In cases where suit is brought by a nominal party for the benefit of another party, the beneficiary is the real party in interest and must be considered the sole party of record. Title 7, § 127, Code of Alabama 1940; Smith v. Yearwood, 197 Ala. 680, 73 So. 384 (1916); Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309 (1917); Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356 (1917); Alabama Water Co. v. City of Jasper, 211 Ala. 280, 100 So. 486 (1924).
In quo warranto actions the rule is established that where suit is brought by the State on relation of another party, it is the relator and not the State who is the real party in interest.
"* * * The use of the name of the State is more or less a formality. The State is without interest and only a formal party to the cause (State ex rel. Chilton County v. Butler, supra [ 225 Ala. 191, 142 So. 531]; 51 C.J. 334). * * *" Baxter v. State ex rel Metcalf, 243 Ala. 120, 9 So.2d 119 (1942).
It is also well settled that an amendment adding or striking a nominal party will not work a complete change of parties, as long as the real party in interest remains in the suit. American Employers' Ins. Co. of Boston, Mass. v. Lee and Kincaid Coal Co., 226 Ala. 262, 146 So. 408 (1933); Alabama Power Co. v. Hamilton, supra; Smith v. Yearwood, supra; see also, Wynn v. Hoffman, 203 Ala. 72, 82 So. 32 (1919).
We conclude that the Board of Optometry was the real party in interest and the sole party of record, the State being merely a nominal or formal party. Therefore, the effect of the second amendment, the propriety of which is the subject of this appeal, was merely to strike the nominal party.
The Board of Optometry, as the real party in interest remained as a party, and by authority of Act No. 509, supra (now Title 7, § 1063(1), Code of Alabama 1940, as amended), may now proceed as complainant in its own name.
In dismissing this bill the trial court was in error. This cause is therefore reversed and remanded to the circuit court of Mobile County, in equity.
Reversed and remanded.
HEFLIN, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.