State v. Robins
| Decision Date | 03 January 1905 |
| Docket Number | 9232 |
| Citation | 73 N.E. 470,71 Ohio St. 273 |
| Parties | The State Of Ohio Ex Rel. v. Robins. |
| Court | Ohio Supreme Court |
Surety bonds - Act of April 20, 1904 - Relating to giving of same - Invalid - Constitutional law.
The act of the general assembly entitled "An act to amend section 3641c of the Revised Statutes of Ohio, relating to the giving of surety bonds," passed April 20, 1904 (97 O. L., 782), is unconstitutional and void, being in violation of article 1, sections 1 and 2 of the constitution.
The facts appear in the opinion.
Mr Lawrence T. Neal, for relator.
This act is, as we maintain, unconstitutional, and therefore void, on several separate and distinct grounds.
1. A necessary requirement of all legislation is that it shall not be unequal or partial in its character and effect.
The right of equal protection to our people under the law is guaranteed to them, both by the constitution of our state and the constitution of the United States. Article one, section two, in the bill of rights in our own state, after declaring that "all political power is inherent in the people," provides that "government is instituted for their equal protection and benefit;" and in the fourteenth amendment to the constitution of the United States we have a provision similar in character, it being by it provided that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Bill of Rights, constitution of Ohio, article 1, section 2; constitution of the United States, fourteenth amendment.
Class legislation, it would seem from these constitutional provisions, is not to be tolerated, under any guise. It is condemned and prohibited by them, and is, in all cases invalid.
This law is, upon this ground, unconstitutional and void. It makes an unjust and unjustifiable discrimination between surety companies and natural persons by giving to the former rights and privileges, which are denied to the latter; and if the giving of such exclusive privileges to these corporations does not constitute class legislation, we are unable to comprehend the meaning of the term.
The exact language of the act is that "the execution or guaranteeing, as surety, of all bonds and undertakings for the faithful performance of official or fiduciary duties, or the faithful keeping, applying or accounting for funds or property or for one or more of such purposes, excepting bonds of the superintendent of insurance, and of notaries public or of executors, administrators, guardians, trustees or other fiduciaries, whose bonds are fixed by the court at an amount not in excess of $2,000.00, is hereby required to be by such company or companies."
This requirement of the act can but be fatal to its validity. It abolishes personal suretyship on bonds, except bonds of the superintendent of insurance and notaries public, and except bonds of executors, administrators, guardians, trustees and other fiduciaries under $2,000.00 in amount; and, repudiating the principle that all stand upon an equality under the provisions of the constitution, creates a favored class to which is extended a species of favoritism as odious as it is unjust.
It can not, with any show of reason, be argued that two persons have equal protection under the law, when one, in giving a bond as executor or administrator for $2,000.00 or less, can have under the law a bond executed by personal sureties approved and accepted; and the other, in giving a bond for the same purpose for $2,001.00, or any larger amount, is denied by law the right to execute a bond with personal sureties and compelled to have it executed by a surety company before it can be legally approved and accepted.
It was upon this principle of equal protection under the law, that this court held the act of April 20, 1894, imposing a direct inheritance tax to be unconstitutional. Rejecting and overruling every other objection urged against the validity of the act, the decision was that it was unconstitutional because it exempted estates of $20,000.00 and under from taxation, and, in case the estate exceeded $20,000.00, it taxed the entire estate without any exemption whatever, and further discriminated against large estates by taxing them at a higher rate per centum than small estates. State v. Ferris, 53 Ohio St. 314.
The same principle induced this court, in another case, to declare unconstitutional and void an act of the legislature authorizing an attorney fee not in excess of five dollars to be included in the costs of the plaintiff in an action before a justice of the peace for wages, in all cases in which the plaintiff was successful, when a demand in writing for such wages had been made by him, and such wages had not been paid within three days from such demand, and an additional fee not in excess of fifteen dollars in the court of the common pleas, if the judgment of the justice of the peace in favor of the plaintiff should, on appeal by the defendant, be affirmed. Coal Co. v. Rosser, 53 Ohio St. 12.
The application of this principle is aptly illustrated by this court in another case of recent date, in which an act requiring stationary engineers to be examined and licensed was held to be unconstitutional because, in one section, it permitted licenses to be granted, without examination, to applicants who had been continuously employed as engineers for three years next prior to the passage of the act and denied the privilege to others who had not been so employed, and thereby arbitrarily formed a favored class. Harmon v. State, 66 Ohio St. 249.
The cases in which the courts, state and federal, have applied the principle of no discrimination and equal protection under the law, are almost without number. The citation of a few of them will, however, fully subserve the purposes of this case: State v. Gravett, 65 Ohio St. 289; Williams v. Donough, 65 Ohio St. 499; State v. Gardner, 58 Ohio St. 599; Railway Co. v. Baty, 6 Neb. 37; Wilder v. Railroad Co., 70 Mich. 382; Chair Co. v. Runnels, 77 Mich. 104; Durkee v. Janesville, 28 Wis. 464; Holden v. James, 11 Mass. 396; Missouri v. Lewis, 101 U.S. 22; Barbier v. Connolly, 113 U.S. 27; Yick Wo v. Hopkins, 118 U.S. 356; Railway Co. v. Ellis, 165 U.S. 150; Commonwealth v. Clark, 195 Pa. St., 634.
2. Another objection to the validity of the act in question is this. The legislature has, by one of its provisions, made a discrimination in favor of surety companies more objectionable, if possible, than either of those which have been suggested, by actually assuming to delegate to these companies the power to determine what kind of a bond or undertaking any party or officer, other than the superintendent of insurance and notaries public, and executors, administrators, guardians, trustees and other fiduciaries whose bonds do not exceed $2,000.00 in amount, shall be required to give.
While all parties or officers--save such as are within the exceptions stated--are required by the act to procure and file the bond of a surety company, there is no requirement that such company shall, on the application of a party or officer, furnish him with such bond. It is at liberty to reject his application and to refuse him a bond. And if, upon such rejection of his application, the party required to give a bond shall make and file with the head of department, court, judge or officer, whose duty it is to approve and accept his bond, an affidavit that he has applied to a surety company for a bond and that his application has been refused or rejected by it, a bond with personal sureties may be given by him.
It follows from this, therefore, that a surety company can by its own arbitrary act grant or withhold from a party the right to give a bond with personal sureties; and we submit that it is not within the province of the legislature to invest these companies with any such power.
It is, in effect, a delegation of legislative power to surety companies; and the constitution and a wise public policy alike forbid the delegation of any such power to a private corporation. This is particularly true, when, as in this case, the power delegated is to be exercised upon the mere volition of an interested party.
The following authorities, among others, fully establish this proposition: Harmon v. State, 66 Ohio St. 249; People v. Bennett, 29 Mich. 451; Senate, etc. v. Supervisors, 99 Mich. 117; Fogg v. Union Bank, 60 Tenn. 435.
3. The constitutionality of this act may well be questioned on another ground. Courts of record have the inherent power to determine judicially as to the sufficiency of any security to be required from persons subject to their order. This power is beyond legislative interference. But the legislature in this act usurps this power of the courts, when it requires that all official bonds, recognizances and undertakings, except those of the superintendent of insurance and notaries public, and all bonds of executors, administrators, guardians, trustees and other fiduciaries, not in excess of $2,000.00 in amount, shall be executed by a surety company, and when it forbids the acceptance of any bond otherwise executed, although the sufficiency of such bond may, in the judgment of the court, be beyond question, and the security offered by it may be higher and better than that of any such company.
The fact that this limitation upon the right of the company to become the surety upon any one bond is seemingly for the purpose of adding to the value of the security to be given, does not in any way detract from the force of our proposition, that the act in this respect undertakes to control, and does control, the judicial discretion of the courts. It arbitrarily takes away from the courts the power to judicially determine for themselves the question as to whether the...
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