Hudgins, J.,
delivered the opinion of the court.
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 (Micliie), secs. 6i4oa-6i4oh) 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), secs. 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 constitutional, 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 [345] 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 al-. leged 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 statement 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; [346] * * * 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 question 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 [347] 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.
Free access — add to your briefcase to read the full text and ask questions with AI
Hudgins, J.,
delivered the opinion of the court.
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 (Micliie), secs. 6i4oa-6i4oh) 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), secs. 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 constitutional, 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 [345] 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 al-. leged 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 statement 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; [346] * * * 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 question 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 [347] 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 pros[348] ecute all cases arising under this section, but the board may employ additional counsel from time 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 party plaintiff does not prevent the'case from being removable to the proper Federal court, but when a state is a party plaintiff no question of diversity of citizenship exists, “for a state, in the nature of things, cannot be a citizen of any state.” Hughes’ Federal Practice, sec. 2321, p. 96.
Respondents rely on the State of Ohio v. Swift & Co., 270 F. 141, to sustain their contention that this cause is removable on the ground of diversity of citizenship. The pertinent facts in that case were that Allen J. Seney, a prosecuting attorney of Lucas County, alleged that he was a duly elected and qualified prosecuting attorney, and that he brought the action in his official capacity on behalf of the State of Ohio. The prosecuting attorney referred to no statute, nor to any general law, which authorized him to implead the state. The court stated that the “solution of the question as to who should, for the purpose of removal, be considered as the plaintiff, is full of complication and difficulty. * * * ' The complaint is signed, ‘Allen J. Seney, Prosecuting Attorney of Lucas County, Ohio,’ and is verified by ‘Allen J. Seney.’ He does not allege that any law authorizes him to cause the state to sue or to be sued. The consent of the state to be a party is essential, and it can be given only by those authorized. Ordinarily, the state sues by the Attorney General, and even he should point out his authority to implead the state.”
[349] The facts in the case at bar are distinguishable. First, Code, sec. 1637, authorizes the Virginia State Board of Examiners in Optometry to employ counsel to assist in the enforcement of the statutes involved. The Governor and the Attorney General are the proper officials to implead the Commonwealth of Virginia. The bill is signed by the Commonwealth of Virginia at the relation of the members of the Virginia State Board of Examiners in Optometry and by the Attorney General. These facts and the dominating purpose of the suit are sufficient to support the conclusion that the Commonwealth of Virginia is the real party plaintiff.
The second assignment’ of error challenges the jurisdiction of the court to issue an injunction on the ground that equity will not restrain an act merely because it is a violation of a criminal statute. Drummond v. Rowe, 155 Va. 725, 156 S. E. 442; Turner v. Hicks, 164 Va. 612, 180 S. E. 543, and Mears v. Colonial Beach, 166 Va. 278, 184 S. E. 175, are cited to support this contention. The principle is sound and has been applied in numerous cases. However, it is not the controlling principle applicable to the facts stated. The bill charges respondents with the illegal practice of optometry, and with advertising the sale of eyeglasses at bargain prices, using fraudulent tricks and devices to entice the general public into their place of business for the purpose of unlawfully procuring large sums of money; states that the advertisements in the newspapers of Richmond and five other cities of the Commonwealth were part and parcel of a general plan and scheme to disseminate false and misleading advertisements throughout the Commonwealth; and avers that the business so conducted constitutes a menace to the health and welfare of the public at large. It is further alleged that the fines and punishments imposed by the statute would necessitate a multiplicity of prosecutions in numerous counties and cities and would not afford an adequate remedy at law for the protection of the public generally, and that the respondents had attempted to prevent the institution of criminal prosecutions against them by [350] threats of retaliation in the form of damage suits. These and other allegations, if established by evidence, are sufficient to constitute a nuisance per se. Any act, omission or use of property which is of itself hurtful to health, tranquillity or morals, or outrages the decency of the community is a nuisance.
In the famous Debs Case, 158 U. S. 564, at page 584, 15 S. Ct. 900, 39 L. Ed. 1092, it is said: “Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.”
In 28 Am. Jur., p. 341, this is said: “The state is intrusted with the duty of protecting the public against criminal acts injurious to the civil or property rights or privileges of the public or the public health. Ordinarily recourse is had to its criminal courts for such purpose. Yet there may be cases where the remedy at law by criminal prosecution and punishment would not be adequate under the circumstances, and where the remedy in equity by injunction would furnish more effectual and complete relief. In such cases, according to the weight of authority, when the interests of the state or other political division or the interests of those entitled to its protection are thus affected by criminal acts or practices, the state, acting through its governmental agencies, may invoke the jurisdiction of equity to have them restrained.”
While the agents and employees of respondents may be amenable to criminal prosecution for the acts alleged, the principal offenders are respondents who are nonresidents, hence the Commonwealth might have serious difficulty in en[351] forcing a judgment of conviction, if obtained, as misdemeanors are not extraditable offenses. The allegation and proof reveal that the ordinary recourse to criminal prosecution would not be adequate for the protection of the public health and welfare and, under the principles stated, equity has jurisdiction to issue the injunction sought.
The third assignment of error is based on the trial court’s ruling that the respondents were engaged in the practice of optometry in violation of law.
The Legislature has declared optometry to be a profession and has defined the practice of optometry (Code, sec. 1624) as follows: “Optometry is hereby declared to be a profession. Any person shall be deemed to be practicing optometry within the meaning of this chapter who shall display a sign, such as an eye, a pair of eyes, or who shall in any way advertise himself as an optometrist, or who shall examine the human eye, to ascertain the presence of defects or abnormal conditions which can be corrected or relieved or the effects of which may be corrected or relieved by the use of lenses, prisms, or ocular exercises, or employ any subjective or objective mechanical means to determine the accommodative or refractive states of the human eye or range or power of vision of the human eye, or have in his possession testing appliances for the purpose of the measurement of the powers of vision, or diagnose any ocular refractive deficiency or deformity, visual or muscular anomaly of the human eye, or prescribe or adapt lenses, prisms, or ocular exercises for the correction or relief of the same, or who holds himself out as.being able to do so, or who shall use the title of doctor of optometry (O. D.), or any other letters or title in connection with his or her name, which in any way may convey the impression that he or she is engaged in the practice of optometry.”
The causes for which a certificate to practice optometry may be revoked are defined in Code, sec. 1635, and the prohibitions and penalties for the violation thereof are [352] stated in Code, secs. 1636 and 1637. For convenience, these sections are quoted in full in a footnote.