204 U.S.

36
27 S.Ct. 243
51 L.Ed. 357

CORWIN D. BACHTEL, Plff. in Err.,

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 1 of
the 14th 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 wilfully 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, 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's 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.
Mr. William A. Lynch for plaintiff in error.
Messrs. Charles C. Upham and John W. Craine for defendant in error.
Statement by Mr. Justice Brewer:
Mr. Justice Brewer delivered the opinion of the court:

Counsel predicate the unconstitutionality of this statute, not on its provisions

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 section
with provisions kindred to those in 30, above quoted, and the contention is
that the plaintiff in error was denied the 'equal protection of the laws'
guaranteed by the 14th 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 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 30, 'any banking company,' embrace 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 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.
4

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 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 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 14th 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 14th Amendment, must be
arbitrary and unreasonable; not merely possibly, but clearly and actually so.
Carroll v. Greenwich Ins. Co. 199 U. S. 401, 411, 50 L. ed. 246, 250, 26 Sup.
Ct. Rep. 66. 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.
6

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
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 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.