Eastman v. State
| Decision Date | 01 April 1936 |
| Docket Number | 25362. |
| Parties | EASTMAN v. STATE. |
| Court | Ohio Supreme Court |
Certified by the Court of Appeals, Lucas County.
Syllabus by the Court .
1. Under the provisions of section 6 of article IV of the Constitution of Ohio, the Court of Appeals has appellate jurisdiction to review, affirm, modify, or reverse the judgments of the court of common pleas.
2. This power may not be delimited by statute. (Paragraph 1 of the syllabus in the case of Cincinnati Polyclinic v Balch, 92 Ohio St. 415, 111 N.E. 159, approved and followed.)
3. These jurisdictional provisions are equally applicable to civil and criminal cases, except when the latter involve the element of former jeopardy under section 10 of article I of the Constitution of Ohio.
4. A statute cannot be held invalid for uncertainty if any reasonable and practical construction can be given to its language; mere difficulty in ascertaining its meaning, or the single fact that it is susceptible of different interpretations will not necessarily render it nugatory; it is the duty of courts to endeavor by every rule of construction to ascertain the meaning of, and give full force and effect to, every enactment of the General Assembly not obnoxious to constitutional prohibition.
5. Words in common use will be construed in their ordinary acceptation and significance, and with the meaning commonly attributed to them.
6. A banking company is insolvent under section 710-174, General Code, when the aggregate of its debts and liabilities exceeds the fair valuation of all its assets.
7. Section 710-174, General Code, is not vague, indefinite, or uncertain, but is a constitutionally valid enactment of the General Assembly.
8. Under the provisions of section 710-174, General Code, a director of a bank is an officer thereof. (Paragraph 4 of the syllabus in the case of State v. McNary, 126 Ohio St. 381, 185 N.E. 547, approved and followed.)
9. In the exercise of the legislative power vested in it by the Constitution of Ohio, the General Assembly has pre-empted the fields of both substantive and procedural criminal law in this state. (Paragraph 1 of the syllabus in the case of Municipal Court of Toledo v. State ex rel. Platter, 126 Ohio St. 103, 184 N.E. 1, approved and followed.)
10. A ruling of a trial court discharging a defendant and sustaining a demurrer to an indictment on the ground that a director of a bank is not an officer thereof within the purview of section 710-174, General Code, is not an acquittal on the merits after trial had, as defined by sections 13440-6 and 13440-7, General Code.
11. Sections 13440-6 and 13440-7, General Code, are not violative of the due process clause of article XIV of the Amendments to the Constitution of the United States.
12. The provisions of sections 13446-2 and 13446-4, General Code attempt to enlarge the judicial power of the Supreme Court and to abridge that of the Court of Appeals, and are therefore void by reason of conflict with sections 2 and 6 of article IV of the Constitution of Ohio. (Paragraph 3 of the syllabus in the case of State v. Cameron, 89 Ohio St. 214, 106 N.E. 28, paragraphs 1 and 3 of the syllabus in the case of State v. Kassay, 126 Ohio St. 177, 184 N.E. 521, and paragraph 1 of the syllabus in the case of State v. McNary, 126 Ohio St. 381, 185 N.E. 547, overruled.)
On March 31, 1933, the grand jury of Lucas county returned an indictment containing four counts against Leroy E. Eastman and four others, charging Eastman as an officer, to wit, a director of the Security-Home Trust Company, a bank in the city of Toledo, Ohio, with receiving and permitting employees to receive deposits therein, knowing the bank to be insolvent. The statute invoked is section 710-174, General Code, which reads as follows:
‘ Whoever, being an officer or employee of a bank, receives or, being an officer thereof, permits an employee to receive money, checks, drafts or other property as a deposit therein when he has knowledge that it is insolvent, shall be fined not more than five thousand dollars or imprisoned in the penitentiary not more than five years, or both.’
Motions for a bill of particulars and to quash were overruled. Then the defendant Eastman filed a plea in abatement asking that he be dismissed and discharged for the reason that the offenses charged in the indictment were then res judicata.
To this plea in abatement the state filed a demurrer.
The court of common pleas treated the defendant's plea in abatement as a plea in bar, and overruled the state's demurrer, thereby sustaining the defendant's claim of res judicata. The court also dismissed the indictment as to the defendant Eastman, and ordered him ‘ hereby dismissed and discharged from and of the premises in said indictment specified.’
The state prosecuted error to the Court of Appeals, where the defendant filed a motion to dismiss the petition in error on the ground that the state had no right or authority to prosecute such a proceeding in this case, and that the Court of Appeals was without right or authority to hear and determine the matter. This motion was overruled, the judgment of the court of common pleas was reversed, and the cause was remanded. Then the Court of Appeals certified the case to this court on the ground that its decision of the question of jurisdiction is in conflict with the decision of the Court of Appeals of Summit county in the case of State v. Kondak, 46 Ohio App. 422, 189 N.E. 122.
Fraser, Effler, Shumaker & Winn, John W. Hackett, and Smith, Baker, Effler & Eastman, all of Toledo, for plaintiff in error.
Frazier Reams, Pros. Atty., Thomas S. Bretherton, and J. S. Rhinefort, all of Toledo, for the State.
The first question to be decided is whether it was erroneous for the Court of Appeals to overrule the motion of the defendant to dismiss the petition in error on the grounds that the state had no right or authority to prosecute such a proceeding in this case, and that the Court of Appeals was without jurisdiction to hear and determine the matter.
This phase of the controversy is greatly simplified by reason of the fact that the defendant makes no claim of former jeopardy under section 10 of article I of the Constitution of Ohio. This makes it unnecessary to do more than advert to section 6 of article IV of the Constitution, which provides that: ‘ The courts of appeals shall have * * * appellate jurisdiction * * * to review, affirm, modify, or reverse the judgments of the courts of common pleas.’ This language contains no intimation of a distinction between civil and criminal cases, and is so simple, unambiguous, and comprehensive as to require no construction; and of course under the Constitutional Amendments of 1912 the established judicial powers of the Court of Appeals may in nowise be delimited by statute. Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620; Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N.E. 159. Therefore, the ruling of the Court of Appeals in this respect was manifestly correct.
The second question involves the contention of the defendant that section 710-174, General Code, is violative of the due process clause of article XIV of the amendments to the Federal Constitution, in that it is vague, indefinite, and uncertain, especially because of the use of the term ‘ insolvent,’ without providing a definition thereof. The defendant insists that this unfortunate statutory deficiency is fatal inasmuch as the case law of Ohio likewise fails to supply a satisfactory definition. This feature of the case is not discussed in the brief of the state.
It is of course true that at least two distinct meanings have been accorded to this term. Generally, it is used broadly to denote the insufficiency of the entire property and assets of an individual to pay his debts. It is also employed in a more restricted sense to express the inability of a person to pay his debts as they become due in the ordinary course of his business. 22 Ohio Jurisprudence, 113; 14 Ruling Case Law, 628. Then in volume 5 Ohio Jurisprudence at page 492, under the subject of banks, the following statement appears:
‘ As a matter of law, a banking company is considered solvent when it has on hand sufficient securities and funds to pay all its debts and liabilities; and it is considered insolvent when its debts and liabilities exceed all its assets.’
This is sometimes called the ‘ bankruptcy’ rule. In Ballentine's extremely useful law dictionary appears the following definition:
‘ It may be used to denote the insufficiency of the entire property and assets of an individual to pay his debts, which is its general meaning and its meaning as used in the present National Bankruptcy Act.’
Likewise in Webster's New International Dictionary the first definition given is: ‘ Not having sufficient estate to pay one's debts.’
A helpful discussion is found also in the annotation beginning on page 1160 of volume 81 A.L.R.
It seems that on at least two occasions the Legislature of Ohio has attempted a definition of the word. In the Uniform Sales Act in section 8456, subsection 3, General Code, appears the following restricted definition:
‘ A person is insolvent within the meaning of this chapter who either has ceased to pay his debts in the ordinary course of business or can not pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is insolvent within the meaning of the federal bankruptcy law or not.’
Then in section 13108-1, General Code, in the Penal Code chapter on frauds, the following broad definition is employed with reference to the receipt of money or other property by an insolvent broker: ‘ A person...
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Eastman v. State
...131 Ohio St. 11 N.E.2d 140EASTMANv.STATE.No. 25362.Supreme Court of Ohio.April 1, Certified by the Court of Appeals, Lucas County. Leroy E. Eastman was charged as an officer of a bank with receiving and permitting employees to receive deposits, knowing the bank to be insolvent. The court di......