The highest court of a state is, except in the matter of
contracts, the ultimate tribunal to determine the meaning of its
statutes.
Where the highest court of a state has, without opinion,
sustained the validity of a state statute and there were at least
two questions of construction before it, one of which excluded all
federal objections on which its decision can rest, until it is
shown which construction the state court accepted, this Court
cannot hold the statute to be unconstitutional.
While a state legislature may not arbitrarily select certain
individuals for the operation of its statutes, the selection, in
order to be obnoxious to the equal protection clause of the
Fourteenth Amendment, must be clearly and actually arbitrary and
unreasonable, and not merely possibly so.
Writ of error to review 74 Ohio St. 524 dismissed.
The sole question in this case, as stated by counsel for
plaintiff in error, is whether the following section of the
statutes of Ohio contravenes section 1 of the Fourteenth Amendment
of the Constitution of the United States:
"Every president, director, cashier, teller, clerk, or agent of
any banking company who shall embezzle, abstract, or willfully
misapply any of the moneys, funds, or credits of such company, or
shall, without authority from the directors, issue or put forth any
certificate of deposit, draw any order or bill of exchange, make
any acceptance, assign any notes, bonds, drafts, or bills of
exchange, mortgage, judgment, or decree, or shall make any false
entry in any book, report, or statement of the company, with intent
in either case to injure or defraud the company, or any other
company, body politic or corporate, or any individual person, or to
deceive any officer of the company, or any agent appointed to
inspect the affairs of any banking company in this state, shall be
guilty of an offense, and, upon conviction thereof, shall be
confined in the penitentiary
Page 204 U. S. 37
at hard labor not less than one year nor more than ten
years."
Section 30, Act of March 21, 1851, entitled, "An Act to
Authorize Free Banking," as amended April 24, 1879, 76 Ohio Laws,
74; 2 Bates' Anno.Stat. (Ohio) 6th ed. §§ 3821-3885.
Plaintiff in error, who was cashier of the Canton State Bank, a
bank incorporated under the above "free banking" act, was indicted
in the Court of Common Pleas of Stark County for a violation of
this section. A demurrer to the indictment having been overruled,
he, before arraignment, sued out a writ of habeas corpus in the
circuit court of that county. Thereafter, the final judgment of the
supreme court of the state in that proceeding having been adverse,
he brought the case here on this writ of error.
Page 204 U. S. 38
MR. JUSTICE BREWER delivered the opinion of the Court.
Counsel predicate the unconstitutionality of this statute, not
on its provisions standing by themselves, but on its relation to
other statutes.
On February 26, 1873 (70 Ohio Laws, 40), an act was passed in
terms incorporating savings and loan associations, but with powers
such as in fact authorized the carrying on of ordinary commercial
banking. Under this statute, a few institutions were organized. In
1880, a general incorporation law was enacted (Rev.Stat. Ohio 1880,
§ 3235 and following), and under it many banks were formed. In
addition, the banking statistics of the state show that there are
several banks owned by unincorporated stockholders, copartnerships,
or individuals. Now in no statute, save the free banking act, is
there any
Page 204 U. S. 39
section with provisions kindred to those in section 30, above
quoted, and the contention is that the plaintiff in error was
denied the "equal protection of the laws" guaranteed by the
Fourteenth Amendment in that he was subject to prosecution and
punishment for matters and things which, if done by a cashier of
any similar institution, whether unincorporated or incorporated
under the statutes of Ohio other than the free banking act, would
not subject him to punishment. The cashiers of such other
institutions are charged with duties substantially the same as
those of this plaintiff in error, and yet the one may be punished
for a violation of those duties and the others not. Can the state
single out a few men and punish them for acts when for like acts
others are free from liability?
No opinion was filed by the supreme court of the state, and we
therefore are not advised of the grounds upon which that court held
section 30 valid; yet that court did hold it valid, and in the face
of the same objections that are made to it here. If "any banking
company," as found in the free banking act, is applicable to every
banking institution, no matter under what statute organized, there
is no violation of the equal protection of the laws. Counsel for
plaintiff in error contend that the supreme court could not have
given so broad a meaning to those words, because they are in a
section treating of crimes, and the rule of strict construction,
which is universal in respect to criminal statutes, forbids its
extension to institutions other than those incorporated under the
act of which it is a part, because the title of the original act,
"An Act to Authorize Free Banking," limits the scope of the
statute, and therefore the applicability of every section therein,
and further that, as the free banking act, as originally passed,
was only to be in force until the year 1872, it is improbable that
a criminal provision of general application should be inserted in
an act so limited in the matter of time. On the other hand, it is
contended by the defendant in error that the words in section 30,
"any banking company," embrace
Page 204 U. S. 40
all banking institutions in the State of Ohio, whether
incorporated under the free banking act or not, and this because
the words themselves are broad and comprehensive, because there is
no other provision in the statutes for punishing those who commit
the offenses named in said section, and it cannot be supposed that
the legislature intended that other like officials should be immune
from punishment, and also because section 30, both in the original
act and also in the Revised Statutes, has no apparent connection
with, in no way modifies or affects any other sections, and might
as well have been placed in the criminal code or by itself in the
statutes.
But we are not called upon to decide which is the correct
interpretation. The supreme court of a state is the ultimate
tribunal to determine the meaning of its local statutes. We are not
to assume that that which seems more reasonable to us also seemed
more reasonable to and was adopted by it. Before we can pronounce
its judgment in conflict with the federal Constitution, it must be
made to appear that its decision was one necessarily in conflict
therewith, and not that possibly, or even probably, it was. It
surely is not unworthy of consideration that the legislature,
having before it the question of punishment for offenses committed
by banking officers, having made provision therefor by one section
in which it used the term "any banking company," may have believed
that thereby it had included in its punitive provisions all banking
institutions, and that a repetition of that section in other
statutes was unnecessary. We do not decide that this was so, but we
do hold that, in view of the silence of the supreme court, we are
not justified in assuming that it held that it was not so.
Further, if we assume that the supreme court was of the opinion
that section 30 was limited in its applicability to institutions
incorporated under the free banking act, a question will then be
whether the selection of officers of those institutions and
subjecting them to punishment, when the officers of all other
banking institutions, guilty of similar offenses, are
Page 204 U. S. 41
not so subject, is a denial of the equal protection of the laws.
The power of a state legislature to select certain individuals for
the operation of a statute is not an arbitrary power, one that it
can exercise without regard to any principle of classification. And
yet there is a power of selection. The Fourteenth Amendment was not
designed to prevent all exercise of judgment by a state legislature
of what the interests of the state require, and to compel it to run
all its laws in the channels of general legislation. It may deem
that social and business conditions, without penal legislation,
afford ample protection to the public against wrongdoing by certain
officials, while such legislation may be deemed necessary for like
protection against wrongdoing by other officials charged with
substantially similar duties. The duties of a county or city
treasurer may be very like those of the treasurer of a charitable
or business corporation, and yet if the legislature prescribed
penalties for misconduct of the former and none for similar
misconduct of the latter, it would be giving the Amendment extreme
force to make it efficient to overthrow the statute, and thus
relieve all treasurers from punishment. In short, the selection, in
order to become obnoxious to the Fourteenth Amendment, must be
arbitrary and unreasonable -- not merely possibly, but clearly and
actually so.
Carroll v. Greenwich Ins. Co., 199 U.
S. 401,
199 U. S. 411.
Would the singling out for punishment of the officers of the free
banks be an arbitrary selection? The free banks, though they may be
like other banking institutions, are not in all respects the
same.
But here, too, we are not called upon for an absolute decision,
nor do we deem it necessary to determine whether there be such
differences as will sustain the imposition of punishment of their
officers, when none is cast upon the like officers of other banks.
We only refer to these matters to indicate that there were at least
two questions before the supreme court involving the validity of
section 30, one of which at least, presents no matter of a federal
nature, and in respect to each of which something may be said one
way
Page 204 U. S. 42
and the other, and until it is shown what the supreme court did
in fact decide, it is impossible to hold that the section, as
construed by it, is in conflict with the federal Constitution.
Under those circumstances, it is clear that we have no
jurisdiction,
Johnson v. Risk, 137 U.
S. 300, and cases cited in opinion, and the writ of
error is
Dismissed.
