State ex rel. Saxbe v. Brand

176 Ohio St. (N.S.) 44
CourtOhio Supreme Court
DecidedMarch 18, 1964
DocketNo. 38466
StatusPublished

This text of 176 Ohio St. (N.S.) 44 (State ex rel. Saxbe v. Brand) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Saxbe v. Brand, 176 Ohio St. (N.S.) 44 (Ohio 1964).

Opinion

Taft, C. J.

Belator’s first contention is that Sections 122.13 to 122.36, Bevised Code, are invalid by reason of the limitations on legislative power set ferth in Section 4 of Article VIII of the Constitution of Ohio, which reads:

‘ ‘ The credit of the state shall not, in any manner, be given or loaned to, or in aid of, any individual association or corporation whatever; nor shall the state ever hereafter become a joint owner, or stockholder, in any company or association in this state, or elsewhere, formed for any purpose whatever.”

In determining whether “the credit of the state” will be given or loaned on the facts alleged and admitted in the instant case, we must first determine the meaning of the words “the credit of the state.” Those words were used by the people in 1851 when Section 4 of Article VIII became a part of the Constitution.

In Burrill’s Law Dictionary published shortly thereafter in 1859, “credit” is defined as “payment of money, in confidence of future repayment” (i. e., what Webster, infra, describes as “a loan of money”) and as “ability to borrow”; and [47]*47“creditor” is defined as “one who gives or has given credit to another” and as “one to whom a debt is due.”

Somewhat similar definitions are contained in Webster’s Third New International Dictionary published in 1961, where “credit” is defined as “a loan of money” and as “an amount or limit to the extent of which a person may receive goods or money for payment in the future” (i. e., what Bur rill, supra, describes as “ability to borrow”); and “creditor” is defined as “one who gives credit” and as “one to whom money is due.”

In deciding this case, it is not necessary to try to give an all inclusive definition of the word “credit” as that word is used in Section 4 of Article VIII of the Ohio Constitution. It is sufficient to recognize that that word in that section includes within its meaning (1) a loan of money and (2) the ability to borrow or borrowing power (i. e., the ability to acquire something tangible in exchange for a promise to pay for it).

Likewise, it is sufficient to recognize that a creditor is one who gives credit to another or one to whom a debt is due.

The admitted allegations in the pleadings in the instant case contemplate that the commission will be a creditor of each of the borrowers to whom the commission proposes to give “a loan of money” and will therefore be giving credit (i. e., a loan of money) to each of those borrowers.

There will also be a giving or lending of credit by the commission to each of those borrowers if the word “credit” is considered as meaning “the ability to borrow” or borrowing power.

In order to make two of the loans involved in the instant case, Section 122.17, Revised Code, required the commission to find that “the proposed borrower * * * is unable to finance the proposed project through ordinary financial channels upon reasonable terms and at reasonable interest rates.” As to the 90% loan, that statute required the commission to find “that 40% * * # cannot be financed” even by a first mortgage on the proposed project to a private financial institution, such as a bank, savings and loan company or insurance company.

It is apparent, therefore, that, as to each proposed borrower, its “ability to borrow” or borrowing power (i. e., credit) is not sufficient to enable it to borrow the money which the commission proposes to loan to such borrower on terms as advan[48]*48tageous as the terms which the commission proposes to provide. In effect, therefore, each such borrower will be receiving more credit (or borrowing power) because of the commission’s loan to it than it could otherwise get from any financial institution. At least to that extent, the commission is giving or loaning “credit * * * to, or in aid of” that borrower.

The “credit” so given or loaned is “credit,” and the money that the commission has to lend is money, which credit and money the commission has by reason of the power conferred upon it by the state to “issue revenue bonds of the state” and to receive “grants, gifts, and contributions.”

Furthermore, Section 122.14, Revised Code, specifically provides that the “commission is a body both corporate and politic in this state, and the exercise by it of the powers conferred by Sections 122.14 to 122.36, inclusive # * * is an essential governmental function of the state. ’ ’ Thus, no contention has been or could reasonably be made that the loaning or borrowing of money by the commission, which the pleadings admit will take place, would not be the loaning or borrowing of money by the state. It obviously would be. Neither is it contended nor could it reasonably be contended that the borrowing power of the commission is not the borrowing power of the state. It obviously is. In this respect, this case differs from the situation involved in Opinion of the Justices (1950), 254 Ala., 506, 49 So. (2d), 175, and Andres v. First Ark. Development Finance Corp. (1959), 230 Ark., 594, 324 S. W. (2d), 97, relied upon by the commission, where, under the statutes involved, the borrowing and loaning authorized were borrowing and loaning by an entity separate from the state and not borrowing and loaning by the state.

In two instances in this case, the credit is being given to private corporations for profit. In the other, it is being given to a public corporation but in order to aid a private corporation for profit. The fact, that in each instance there may be a public purpose for making the loan (i. e., to increase employment), does not affect the fact that in each instance credit is being given either to or in aid of a private corporation for profit.

Such a private corporation for profit is certainly included within the meaning of the words “any individual association or corporation whatever” in Section 4 of Article VIII of the Ohio [49]*49Constitution. The instant case differs from State, ex rel. Kauer, Dir., v. Defenbacher, Dir. (1950), 153 Ohio St., 268, 91 N. E. (2d), 512 (the first turnpike decision), and State, ex rel. Leaverton, v. Kerns, Aud. (1922), 104 Ohio St., 550, 136 N. E., 217, which held that the state’s credit could be given or loaned “to or in aid of a public organization created for a public purpose.” See State, ex rel. Speeth et al., Board of County Commrs., v. Carney, Aud. (1955), 163 Ohio St., 159, 126 N. E. (2d), 449, and State, ex rel. McElroy, Atty. Genl., v. Baron et al., Dirs. of Toledo-Lucas County Port Authority (1959), 169 Ohio St., 439, 444, 160 N. E. (2d), 10, apparently also so holding.

Therefore, as to each loan, we have a situation where the commission proposes in effect that “the credit of the state shall * * * be given or loaned to, or in aid of” a private “corporation.” Section 4 of Article VIII of the Ohio Constitution specifically states that this “shall not, in any manner” be done.

Respondents point out that Section 6 of Article VIII of the Ohio Constitution provides against any “laws * * * authorizing any county, city town or township * * * to become a stockholder in any joint stock company, corporation, or association * * * or to raise money for, or to loan its credit to, or in aid of, any such company, corporation, or association. ’ ’

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Bluebook (online)
176 Ohio St. (N.S.) 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-saxbe-v-brand-ohio-1964.