Ritholz v. Dodge

• Decision Date: 30 September 1946
• Docket Number: 4-7993,4-7994
• Citation: 196 S.W.2d 479,210 Ark. 404
• Parties: Ritholz v. Dodge, Chancellor. Arkansas State Board of Optometry v. Dodge, Chancellor
• Court: Arkansas Supreme Court

196 S.W.2d 479

210 Ark. 404

Ritholz v. Dodge, Chancellor. Arkansas State Board of Optometry v. Dodge, Chancellor

Nos. 4-7993, 4-7994

Supreme Court of Arkansas

September 30, 1946

Petition for Prohibition to Pulaski Chancery Court; Frank H Dodge, Chancellor.

Writ Denied.

E Chas. Eichenbaum, Glenn F. Walther and Charles Mehaffy, for petitioners.

Carl Langston, for respondent.

Guy E. Williams, Attorney General, for intervenor.

Carl Langston, for petitioner.

Charles Mehaffy, for respondent.

Guy E. Williams, Attorney General, for intervenor.

OPINION

Minor W. Millwee, Justice.

The petitioners, Ritholz, make application here for a writ of prohibition directed to the judge of the Pulaski Chancery Court to restrain said court from proceeding against them in a cause instituted by the Arkansas State Board of Optometry wherein petitioners are charged with contempt of the Chancery Court by repeated violations of its injunctive orders. In a separate petition the Board of Optometry seeks the issuance of a writ of mandamus directing the Chancellor to assume and exercise jurisdiction in said contempt proceeding over certain residents of Jefferson and Sebastian counties, who are alleged to be the agents and employees of petitioners. The two causes are consolidated for hearing in this court and for convenience the petitioners, Ritholz, will hereinafter be referred to as "petitioners" and the Arkansas State Board of Optometry will be designated "Board".

Petitioners are six non-resident members of a copartnership operating a chain of optical stores in this and other states under the trade name of National Optical Stores Company. On September 30, 1943, a decree was entered in the Pulaski Chancery Court permanently enjoining petitioners and their local agents in Pulaski county from the practice of optometry and engaging in "bait" advertising in violation of Act 94 of 1941. The decree of the Chancery Court was affirmed by this court in the case of Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S.W.2d 410. Subsequent to the issuance of the original injunction, petitioners continued to operate in violation thereof by substituting their manager and salaried physician in the city of Little Rock. The Board instituted further proceedings resulting in punishment of the local manager and physician for contempt, the court declining to punish petitioners because they were not "physically present". The latter case was appealed to this court and affirmed on April 23, 1945, in the case of Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W.2d 538.

On April 17, 1946, the Board filed a petition in the same cause praying for the issuance of an order to show cause why the petitioners and their local agents in the cities of Little Rock, Pine Bluff and Fort Smith, Arkansas, should not be punished for contempt for alleged violation of the restraining orders previously issued by the chancellor. It was alleged that petitioners had moved their place of business in Little Rock and changed their trade name to King Optical Company; that petitioners had again replaced their Little Rock manager and salaried physician and continued to practice optometry and engage in "bait" advertising in violation of Act 94 of 1941 and the injunctions of the court. The Board also charged petitioners and their local managers and physicians in Pine Bluff, Arkansas, and Ft. Smith, Arkansas, with similar violations and asked that the latter be made parties defendant to the contempt proceedings. The court entered an order for the appearance of all the defendants on May 14, 1946, to show cause why they should not be held in contempt for violation of the injunctive decrees previously issued, and a receiver was appointed to take charge of petitioners' property.

Petitioners then filed their special demurrer to the jurisdiction of the court. In the order overruling the special demurrer, the court dissolved the receivership and petitioners were directed to file a corporate bond for $ 2,000 to be held by the Court in lieu of the property of petitioners held by the receivers. Petitioners then filed their motion to strike certain paragraphs of the petition filed by the board, alleging that the court had no jurisdiction of the alleged agents and employees of petitioners at Pine Bluff, Arkansas, and Fort Smith, Arkansas.

On May 21, 1946, the Chancery Court entered an order holding: (1) that petitioners entered their general appearance in the cause by appealing from the decree of September 30, 1943; (2) that petitioners were served originally in the suit in accordance with the provisions of § 14 of Act 94 of 1941 which the court held to be good substituted personal service; (3) that petitioners were duly served with copies of the order to show cause why they should not be punished for contempt, in accordance with § 1385 of Pope's Digest which the court held to be good substituted personal service; (4) that the court had jurisdiction to restrain and punish petitioners from illegally practicing optometry in Pine Bluff, Arkansas, and Fort Smith, Arkansas; (5) that the court had jurisdiction to appoint a receiver to seize the assets of petitioners to aid it in the collection of fines that might be assessed against them; (6) that the court had no jurisdiction over the resident agents and employees of petitioners in Jefferson county and Sebastian county, Arkansas, for the reason that the latter must be sued in their respective counties in accordance with § 1397 of Pope's Digest.

The Petition for Prohibition

In their application for a writ of prohibition, petitioners allege and now earnestly insist: (1) that the proceedings against them are for criminal contempt and the trial court has no jurisdiction of the persons of petitioners and can acquire none; (2) that the record shows on its face that no service has been had on petitioners, and (3) that the trial court has no jurisdiction to appoint a receiver to take charge of the assets of petitioners.

It must be remembered that petitioners were parties defendant in the two cases formerly appealed to this court, and most of the questions now sought to be raised seem to have been previously adjudicated. The contentions of petitioners that the proceeding in the trial court is one for criminal contempt which may only be brought by the state, and in the county where petitioners reside, were made in Hudkins v. Arkansas State Board of Optometry supra, where we said: "As to the subject matter from which the case at bar proceeds, there is, upon the one hand, clear distinction between criminal conduct and punishment, while upon the other hand there is the public's right of protection against continuing practices of unlicensed individuals who persist in an activity legislatively found to be inimical to the common welfare.

"Although the statute says, in effect, that where the prohibited practice continues it may be enjoined at the Board's instance, necessarily an implication arises that in appropriate cases it is the Board's prerogative as an implement of the law to fairly present to a court of equity the facts it believes justify action. Then, if in the Court's discretion injunction follows, the right to find that there has been contemptuous disregard for the court's order is a necessary incident to the tribunal's jurisdiction to act in the first instance."

The question of the validity of the service of process upon petitioners was likewise an issue in the first appeal in Ritholz v. Arkansas State Board of Optometry, supra. This question was argued in the briefs in that case, and we there affirmed the decree entered by the trial court on September 30, 1943, which contains a finding as follows: "The Court finds that said nonresident partners, the Defendants, Ritholz, by their acts of the illegal practice of Optometry have submitted themselves to the jurisdiction of the Court in accordance with the provisions of the Act 94 of 1941, the requirements of which have been fully met by notice and service of summons, having the same legal force and validity as if served personally." The court also retained jurisdiction for any further proceedings.

Section 14 of Act 94 of 1941 provides that any nonresident person, firm or corporation that performs acts in this state which constitute the practice of optometry, except when done by those having a designated agent for service within the state, shall be deemed equivalent to the appointment of the Secretary of State as agent for service of process. After providing for service on the Secretary of State, it is then required that a notice of such service and a copy of the process be sent the non-residents by registered mail, and the defendant's return receipt or the affidavit of the plaintiff, or his attorney, of compliance with the requirement, are placed in the record. It is further provided that such service shall be given "the same legal force and validity as if served on such person, firm or corporation personally." The Legislature has, therefore, by Act 94 of 1941, provided that the practice of optometry within the state by non-residents shall operate as an implied consent to the form of service of process provided in § 14 of the act. The record in this case reflects that there has been a rigid compliance with the terms of this section.

The record shows that a summons to answer the order to show cause issued by the chancellor in the instant proceeding was served upon the manager of petitioners' Little Rock store with copies of the order to show cause and prior injunctive decrees of the court attached to the summons. The trial court held this to be good substituted personal service under § 1385, Pope's Digest, which is Act 74 of the Legislature of 1935. This...