Ritholz v. Commonwealth

• Decision Date: 05 September 1945
• Citation: 35 S.E.2d 210,184 Va. 339
• Parties: RITHOLZ et al. v. COMMONWEALTH et al.
• Court: Virginia Supreme Court

35 S.E.2d 210

184 Va. 339

RITHOLZ et al.

v.COMMONWEALTH et al.

Supreme Court of Appeals of Virginia.

Sept. 5, 1945.

[COPYRIGHT MATERIAL OMITTED.]

Appeal from Circuit Court, City of Richmond; Julien Gunn, Judge.

Action by the Commonwealth of Virginia, at the relation of B. R. Bell and others, composing the Virginia State Board of Examiners in Optometry, against Benjamin D. Ritholz and others, partners, trading and doing business under the firm name of National Optical Stores Company, for a declaratory judgment declaring the constitutionality of the Optometrical Act, declaring that defendants were violating such act and enjoining defendants from further violations. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Peyton, Beverley, Scott & Randolph, of Richmond, for appellants.

Abram P. Staples, Atty. Gen., Beecher E. Stallard, of Richmond, William M. Tuck, of South Boston, and Archibald G. Robertson and Hunton, Williams, Anderson, Gay & Moore, all of Richmond, for appellees.

HUDGINS, Justice.

The Commonwealth of Virginia, at the relation of B. R. Bell, Roger C. Wheeler, L. E. Rayhorn, H. E. Cross and E. E. Crawford, composing the Virginia State Board of Examiners in Optometry, instituted these proceedings under the provisions of the Virginia declaratory judgment statutes, Code 1942 (Michie), secs. 6140a-6140h, against Benjamin D. Ritholz, Morris I. Ritholz, Samuel J. Ritholz, Sylvia Ritholz, Sophie Ritholz and Fannie Ritholz, partners trading and doing business under the firm name of National Optical Stores Company.

The bill charged that an actual controversy had arisen between the complainant and respondents, involving the constitutionality and the construction of Code 1942 (Michie), sees. 1624-1638, inclusive, as amended, dealing with the practice of optometry; and that respondents were engaged in the unlawful practice of optometry in Virginia and fraudulently evading and violating the sections enumerated. The prayer of the bill was that the respective rights, duties, obligations and privileges of complainant and respondents under the statutes be ascertained and declared, that the statutes be held constitu tional, and that the respondents be enjoined from further violation of the law.

The respondents gave notice to B. R. Bell, Roger C. Wheeler, L. E. Rayhorn, H. E. Cross and E. E. Crawford, "allegedly functioning as the Virginia State Board of Examiners in Optometry, " that on the 17th day of August, 1942, they would file a petition and bond for removal of the cause to the United States District Court for the Eastern District of Virginia at Richmond. The petition for removal alleged (1) that "the said action is of a civil nature arising under the Constitution and laws of the United States, " and that, if the contention of the complainant be sustained, respondents would be deprived of their property without due process of law and would be deprived of the equal protection of the Constitution and laws of the United States; (2) that the controversy was between citizens of different States, in that the members of the State Board of Examiners in Optometry were citizens of Virginia and all the respondents were citizens of Illinois; and (3) that the value of the matter in controversy was in excess of the sum or value of $3,000, exclusive of interest and costs. It was further alleged that, while the suit was in the name of the Commonwealth of Virginia, the members of the Virginia State Board of Examiners in Optometry were without authority to institute it on behalf of the Commonwealth of Virginia, and hence the suit was simply a controversy between citizens of different States.

The trial court overruled the motion to remove the cause to the Federal court, retained jurisdiction, adjudicated that the optometry acts were constitutional, found as a fact that respondents were engaged in the unlawful practice of optometry in Virginia, and enjoined them from further violation of the law. From a decree so declaring, this appeal was obtained.

The first question presented in the nineteen assignments of error is whether the case should have been removed to the Federal court.

This question is complicated and perplexing. When a prima facie case is made by proper pleadings, it is the duty of the State court to yield jurisdiction to the Federal court. Ordinarily, issues of fact must be determined by the Federal court on motion to recommit the case to the State court. Respondents contend that a Federal question appears from complainant's state-ment of the case in the bill. Complainant denies that any such question is set forth in the bill. These contentions require a close scrutiny of the bill itself.

In the first paragraph of the bill, it is stated: "Commonwealth of Virginia * * * brings this suit to obtain a temporary restraining order and an interlocutory and permanent injunction restraining the respondents herein from the unlawful practice of optometry and the fraudulent evasion and violation of the Virginia Optometry law in contravention of the public policy of the Commonwealth of Virginia; * * * to obtain a declaratory judgment and decree of this Court adjudicating the aforesaid Virginia optometry law to be in all respects constitutional, and declaring the respective rights, duties and privileges of the parties hereto under the said Virginia optometry law respecting the matters and things hereinafter set forth insofar as the said optometry law is applicable to said complainant and respondents." (Italics supplied.)

One of the prayers of the bill is: "That upon final hearing the Court adjudge that the aforesaid Sections 1624-1638, both inclusive, of the Virginia Code of 1936, as amended, are constitutional and valid and that the Court thereupon make the aforesaid temporary injunction permanent and perpetual." (Italics supplied.)

The parties differ as to the meaning of the terms, "in all respects constitutional, " used in the opening paragraph, and "constitutional and valid, " used in the prayer.

The dominant question presented by complainant is the construction of the statute involved as applied to the activities of respondents in Virginia. It is not clear whether complainant intended to refer to the Constitution of Virginia or to it and the Federal Constitution. These doubts seem to be resolved by the Federal courts against removal. "Not only must the fact of the involvement of a federal question appear in the plaintiff's pleading, but the allegation must be real and substantial, and it must appear from the complaint that in some aspect which the case may assume a federal question will be involved, and that it is set up in good faith. If there is any doubt as to the right to remove, the doubt must be resolved against the federal jurisdiction. The right of removal is not given by a statement, by anticipation, of a possible defense depending upon a federal question, for the showing of a federal ques tion in the complaint must be unaided by anything alleged in anticipation of defenses which may be interposed." Hughes' Federal Practice, sec. 2318, pp. 84-85. " * * *; and it is settled that a petition for removal on the ground of a federal question cannot prevail if the federal question does not appear in the plaintiff's pleading, for the want of it cannot be supplied by averments in the petition." Hughes' Federal Practice, sec. 2524, p. 277.

In 45 Am.Jur. 836, it is said: "To bring a case within the statute, a right or immunity created by the Constitution, laws, or treaties of the United States must be an element, and an essential one, of the plaintiff's cause of action. It is not enough to justify removal that in the progress of the suit it may be necessary to give a construction to the Constitution or laws of the United States."

At page 909, it is also said: "A Federal question must generally be disclosed by the plaintiff's statement of his cause of action, and where it is not thus shown, it cannot be made to appear by allegations in the petition for removal. * * *."

We base our conclusion that the case is not removable on the ground that it does not appear from the complainant's statement of her case by a clear and necessary intendment that a Federal question is involved. The respondents have injected a Federal question, hence they have an opportunity to have their contentions reviewed by the Federal court of last resort.

Respondents contend that the individuals composing the Virginia State Board of Examiners in Optometry were without authority to bring the suit in the name of the Commonwealth of Virginia at their relation; that, if any one had the authority to bring the suit, it was the individuals, all citizens of Virginia; and that, since the respondents were all citizens of the State of Illinois, the case was removable on the ground of diversity of citizenship.

The Commonwealth, as a political entity, has a right, independent of statute, to institute a suit in the various courts. Code, sec. 1637, provides that any violation of the statutes regulating the practice of optometry shall be a misdemeanor, states the penalties and further provides: "It shall be the duty of the respective Commonwealth's attorneys to prosecute all cases arising under this section, but the board may employ additional counsel fromtime to time when necessary upon recommendation of the Attorney General and with the written consent of the Governor obtained in advance to be paid only out of funds arising from the receipts of the board when appropriated for this purpose by law."

Both the Attorney General and the Governor authorized this suit to be instituted in the name of the Commonwealth at the relation of the Virginia State Board of Examiners in Optometry, the purpose being to enforce the police power of the Commonwealth for the protection of the public health and for the advancement of the general welfare of the inhabitants. The fact that a State is a...