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Va. Code Ann. § 20-58 (1950) provides that: If any white person and colored person shall go out of the State of Virginia for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in Va. Code Ann. § 20-59 (1950), and the marriage shall be governed by the same law as if it had been solemnized in the State of Virginia. The fact of their cohabitation here as man and wife shall be evidence of their marriage.
The probationers traveled to a neighboring state to get married and thereafter returned to cohabit as husband and wife. They were indicted for a felony under Va. Code Ann. § 20-58 (1950), which prohibited intermarriage of white and colored persons. They entered guilty pleas, received a suspended sentence of 25 years, and were required to immediately leave the state and not to return together for 25 years. They left and returned, seeking to set aside the suspended sentence as cruel and unusual punishment and violative of Va. Code Ann. § 53-272 (1950) and filing a declaratory judgment action against the state, the attorney general, and the prosecutor for a declaration that Va. Code Ann. §§ 20-50 to -60 (1950) was invalid and violated the Fourteenth Amendment.
Should the Commonwealth of Virginia and the Attorney General of Virginia be dismissed as defendants to this action?
The court the court held that the Commonwealth of Virginia and Robert Y. Button, Attorney General of Virginia, should be dismissed as defendants herein. Upon the facts, found as aforesaid, the court is of the opinion that it has jurisdiction of the present suit; that because of the imminent threat of imprisonment, the plaintiffs are entitled to have the issue of the validity of the said statutes, judgment and sentence forthwith decided in the State courts in the said criminal proceeding or by the Federal courts in this suit; that in view of the immediate pendency in the Circuit Court of Caroline County of the said criminal proceeding, comity requires that this court accede to the request of the defendant State officials to stay this suit for a reasonable time to allow the Commonwealth of Virginia and the plaintiffs herein to have the State courts determine in the said criminal proceeding the enforceability of the said judgment and sentence, and thus decide the issue of the validity of said statutes; and that this court should not now award an injunction pendente lite against the enforcement of the judgment and sentence; but that in lieu of such an injunction, in the event the plaintiffs are taken into custody in the enforcement of the said judgment and sentence, this court, under the provisions of title 28, section 1651, United States Code, should grant the plaintiffs bail in a reasonable amount during the pendency of the State proceedings in the State courts and in the Supreme Court of the United States, if and when the case should be carried there; and that if the Commonwealth of Virginia fails to submit the said issue of the validity of said statutes, judgment and sentence for decision to the State courts promptly, or if the State courts for any reason rule that they cannot or should not decide such issue, then the plaintiffs may again apply to this court to hear and determine said issue; and that if through fault of the plaintiffs the said issue is not or cannot be decided by the State courts, then the defendants may apply to this court for dismissal of this suit.