State v. Stockman

Error is prosecuted to the action of the common pleas court in sustaining a demurrer to the indictment. The language of the indictment was as follows:

"That John Stockman * * * did then and there purchase an entire issue of corporate bonds of the Wymore Improvement Company, an Ohio corporation, secured by bona fide mortgage on real estate, and that thereafter, to wit, on or about the 30th day of January, 1925, the said bonds not having been judicially declared invalid and there being no default in payment of interest or principal thereon, the said John Stockman did unlawfully dispose of less than fifty (50%) per cent. of said issue to B.P. Rabb, then and there being, he, the said John Stockman, not then and there being duly licensed to sell said security as a dealer, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio."

The section of the statute under which the indictment was brought is Section 6373-1, General Code, which reads as follows: "Except as otherwise provided in this act, no dealer shall, within this state, dispose or offer to dispose of any stock, stock certificates, bonds, debentures, collateral trust certificates or other similar instruments (all hereinafter termed ``securities') evidencing title to or interest in property, issued or executed by any private or quasi-public corporation, co-partnership or association (except corporations not for profit), or by any taxing subdivision of any other state, territory, province or foreign government, without first being licensed so to do as hereinafter provided."

In brief, it provides that a dealer in securities must first obtain a dealer's license from the department of securities.

1. It is the contention of the defendant that the bonds mentioned in the transaction described in the indictment do not come within the term "securities" as contemplated by the statute.

We are referred to Section 6373-2, General Code, under the heading "What the Term ``Securities' Shall Not be Deemed to Include." Amongst others it is provided that the term shall not include mortgage bonds and notes where more than 50 per cent. of the entire issue is included in a sale to one purchaser, where the same have not been judicially declared invalid, and where, at the time of such sale, there is no default in payment of any part of the interest or principal. The exact language of Section 6373-2 is:

"The term ``securities,' as used in this act, shall not be deemed to include conveyances of real estate; or, where the same have not been judicially declared invalid, and where, at the time of such sale, there is no default in payment of any part of the interest or principal of the same:

"(1) Mortgage bonds and notes (other than corporate bonds where more than fifty per cent. of the entire issue is not included in a sale to one purchaser) secured by a bona fide mortgage on real estate."

It is contended by the defendant that the specific facts stated in the indictment bring the sale of the bonds in question under the above exemption; that the defendant when he sold his bonds to B.P. Rabb was not selling securities within the meaning of the Blue Sky Law.

It is further pointed out that the facts, as stated in the indictment, show: First, that the bonds in question represented bonds of a corporation; second, that they were secured by a bonafide mortgage on real estate; third, that they were not judicially declared invalid; fourth, that there was no default in payment of interest or principal thereof; and, fifth, that the defendant purchased the entire issue of these bonds and subsequently sold part of the issue to B.P. Rabb, which sale represented less than 50 per cent. of the entire issue.

The theory of the defense is that, having bought the entire issue of bonds, the exemption contained in the above statute attached itself thereto and deprived the same of the characteristics of securities; that subsequent transactions involving the sale of these bonds did not destroy their legal status. In other words, it once having been determined that these bonds are not classified under the term "securities," because of the above exemption, they will not, because of a subsequent sale, be reinvested with that characteristic. In our opinion the question whether or not a given bond issue is a security cannot be determined by the characteristics which the bonds possessed at any one time in such manner as to give them the status of being exempt from the operation of the statute for all times. These same bonds may subsequently be declared invalid, or there may subsequently be a default in the payment of interest or principal. There can be no question that in such event the exemption above referred to would not be applicable to such bonds as soon as the contingency occurs, namely, a default in the payment of interest or principal or a declaration that the same are judicially invalid. Likewise, when the entire issue of these corporate bonds had been sold to the defendant at a time when the same had not been declared judicially invalid and there was no default in the payment of interest or principal, they clearly came within the exception of Section 6373-2, and were at that time included within the meaning of the word "securities" as provided in Section 6373-1, but the moment any one of the conditions necessary in order to claim the exemption appears to be missing the benefit of the exemption cannot be asserted. Therefore, a sale of less than 50 per cent. of the issue would give these corporate bonds the characteristic of securities, for the reasons stated, that to claim the exemption above referred to all the conditions enumerated in the statute must be present. We hold that the demurrer cannot be sustained upon the ground that these corporate bonds are not to be regarded as securities.

2. We have carefully examined the indictment and nowhere find that the defendant is referred to as a dealer. The transaction described in the indictment would rather exclude the theory that the defendant was a dealer. The indictment describes, not a series of transactions, but one sale of less than 50 per cent. of the issue to one B.P. Rabb.

Section 6373-2, under the heading "What the Term ``Dealer' Shall Include," reads: "The term ``dealer,' as used in this act, shall be deemed to include any person or company, except national banks, disposing, or offering to dispose, of any such security, through agents or otherwise, and any company engaged in the marketing or flotation of its own securities either directly or through agents or underwriters or any stock promotion scheme whatsoever, except:

"(a) An owner, not the issuer of the security, who disposes of his own property, for his own account; when such disposal is not made in the course of repeated and successive transactions of a similar character by such owner; or a natural person, other than the underwriter of the security, who is a bona fide owner of the security and disposes of his own property for his own account."

It will be noticed that an owner not the issuer of the security who disposes of his own property for his own account, is excepted from the term "dealer." The indictment in effect charges that the defendant was the owner, not the issuer, of the security, and that he disposed of part of his own property for his own account. It then proceeds to state that he did so unlawfully, not then and there being duly licensed to sell said security as a dealer. Having described in the indictment an act of the defendant which clearly gives him the characteristic of an owner, as defined in the statute, it is unnecessary for him to secure a dealer's license. Only a dealer must take out a dealer's license. An owner is under no necessity so to do.

This definition of the term "dealer" as given in the statute is in harmony with the general law on the subject: "``A dealer' is one who makes successive sales as a business." Overall v. Bezeau,37 Mich. 506.

A "dealer" as used in the United States revenue laws, requiring a dealer in certain commodities to have a license, means one making a plurality of sales. A single sale of all the merchandise which a person has on hand, who is going out of a business formerly carried on by him, does not constitute him a dealer.Goodwin v. Clark, 65 Me. 280.

The indictment in our opinion, which neither expressly nor by description charges the defendant with being a dealer, fails to set forth a crime under the laws of Ohio, and for that reason we are of the opinion that the common pleas court was right in sustaining the demurrer.

The judgment of the common pleas court is therefore affirmed.

Judgment affirmed.

SULLIVAN and VICKERY, JJ., concur.