Ex parte Berger

90 S.W. 759, 193 Mo. 16, 1906 Mo. LEXIS 97

• Court: Supreme Court of Missouri
• Decided: January 23, 1906
• Status: Published

Opinion

GANTT, J.

— This is an original proceeding by habeas corpus for the release of the petitioner on the ground that section 2358, Revised Statutes 1899, is unconstitutional, and his arrest for violation thereof, therefore, is without any legal authority or justification.

The petitioner was arrested by the constable of Central township, St. Louis county, under and by virtue of a warrant issued by I. W. Campbell, a justice of the peace within and for said township, upon an information filed before said justice of the peace by the prosecuting attorney of said county on the 11th of September, 1905, and was in the custody of said constable at the time the application for this writ was made and issued, and is now under bail awaiting the action of this court upon his application. The information upon which he was arrested charges that the petitioner on the 22nd day of August, 1905, in said St. Louis county, did then and there receive from one Frank T. Henry, interest at a greater rate then two per cent per month, for the use of one hundred dollars, loaned by the petitioner to said Henry on the 19th of July, 1905, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.

Section 2358, Revised Statutes 1899, is in these words:

“Sec. 2358. Receiving greater mterest than two per cent per month, etc. — misdemeanor, when — penalty. —Every person or persons, company, corporation or firm . . . who shall take or receive, directly or indirectly, by means of commissions or brokerage charges, or otherwise, for the forebearance or use of money or other commodities, any interest at a rate greater than two per cent per month, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in. the county jail for a period of not less than thirty days nor more than ninety days. ' Nothing herein contained shall be construed as authorizing a higher rate of interest than is now provided by law.” ■

The constitutionality of this section is challenged on four grounds: -First, that it is in violation of section 1 of article 14 of the amendments of the Constitution of the United States which prohibits any State from depriving “any person of life, liberty or property without due process of law. ’ ’ Second, because it violates section 30 of article 2 of the Constitution of the State of Missouri which provides “that no person shall be deprived of life, liberty or property without due process of law. ’ ’ Third, because it is a violation of that portion of section 1 of article 14, of the amendments to the Constitution of the United States which prohibits “any State from denying to any person within its jurisdiction the equal protection of the laws.” Fourth, because it violates section 53 of article 4 of the Constitution of the State of Missouri which prohibits the Legislature from “passing any special law granting to any corporation, assocation or individual any special-or exclusive right, privilege or immunity.”

I. Prior to the enactment of section 2358 on the 14th of April, 1899, the taking of usurious interest had never been declared a criminal offense by the General Assembly of the State of Missouri, and it is now earnestly insisted by learned counsel for petitioner that this section is unconstitutional, because it is not within the power of the Legislature to make usury a crime and punish it as such.

This is a far-reaching proposition. The Constitution of this State ordains that the legislative power,’subject to the limitations therein contained, shall be vested in a Senate and House of Representatives to be styled The General Assembly of the State of Missouri. [Art. 4, Constitution of Missouri.] This legislative power is not defined; it is a general grant by the people to enact all laws necessary for the welfare of the people of the State. Generally speaking, the Legislature of this State has the power to enact any law not prohibited by the Constitution of the United States or the Constitution of this State.

With much industry the learned counsel for the petitioner has collated a long line of decisions in this State to the effect that usurious contracts are not void, but voidable, and that courts will not enforce contracts which are contrary to our laws or public policy. These two propositions do not require the citation of any authorities, but they have little or no bearing upon the question raised here, to-wit, that the Legislature has po power to declare the taking of usurious interest a criminal offense. It may be conceded that at common law usury was not an indictable ofifense, yet it is a fact that various acts of the British Parliament made usury a crime and the states of Indiana, Massachusetts, New Hampshire, New York, South Dakota and Tennessee all have statutes making the taking of usurious interest a misdemeanor, and in none of these states have we been able to find that the constitutionality of such legislation has ever been denied. The State, through its Legislature, may enact any law that is designed to suppress or punish a wrong, to mitigate an evil, prevent extortion or oppression. Obviously it is no objection to a criminal statute that the crime denounced was not one indictable at common law, or that it should have been prohibited specifically by some prior statute. If such were the case, then there could be no legislation on the subject of crime, however urgent and flagrant the offense had become in the various changes of society. Dr. Wharton in his Criminal Law (10 Ed.), see 14a, says: “It has been often said that at common law indictability and immorality are convertible terms. So far, however, from this being the case, there are indictable acts which are not immoral, and immoral acts which are not indictable.” At common law illegal acts are often declared misdemeanors without any precedent.

In Kreibohm v. Yancey, 154 Mo. l. c. 83, section 3710, Revised Statutes 1899, was challenged on the ground that it was in conflict with the fourteenth amendment of the Constitution of the United States, and sections 4 and 30 of article 2, and section 33 of article 4, of the Constitution of Missouri. Responding to that contention, this court, through Brags, J., said: “The main argument in support of this contention impugns the constitutionality of usury laws generally, on the ground that such laws are in restraint of the right of contract, and are not a legitimate exercise of the police power. It would serve no good purpose to review this argument at length. The power to regulate the rate of interest has been exercised by every civilized nation, ancient or modern, whose laws survive in history. [Dunham v. Gould, 16 Johnson 367.] In Anglo-Saxon civilization, laws against usury have always been in force. By the Canon law interest and usury were synonymous terms, and it was unlawful to take any money for the use of money, and this law was rigidly enforced by the temporal authorities of Ehgland until the reign of Henry VIII., when the legal right to take interest was first created by act of Parliament (37 Henry VIII., cap. 9), and ever since in England and in this country, this right has existed in legal contemplation as the creature of statutory enactment. As was said by Mr. Justice Field in Munn v. Illinois, 94 U. S. l. c. 153, ‘ The practice of regulating by legislation the interest receivable for the use of money, when considered with reference to its origin, is only an assertion of right of the government to control the extent to which a privilege granted by it may be exercised and enjoyed. ’ It was in this light that the right was regarded in the Colonies when the Federal government was organized and the Constitution adopted. And ever since, the right has been so recognized and exercised by the states severally, in all of which, with perhaps one or two exceptions, statutes have been enacted and are in force regulating the rate’ of interest. [27 Am. and Eng. Ency. of Law, 929, note 2; Tyler on Usury, chap. 3.] And however much these laws may have been criticised and inveighed against by some publicists and text-writers, they have been so uniformly sustained by the courts, that now it is conceded by some of the latest of these writers that their enactment has so long been recognized as a constitutional exercise of legislative authority as to render it very unlikely that the courts will pronounce them unconstitutional. [Tiedeman’s Lim. of Police Power, sec. 94; Cooley’s Prin. Const. Law, p. 235.]”

The taking of interest, then, beyond a legal rate is granted to no person in this State, and the act now before us simply makes the unlawful act of taking interest in excess of two per cent per month a misdemeanor. Laws against usury are founded on principles of public policy, principles that have for ages been recognized, and this act seeks only to punish that which has for many ages been considered unlawful in itself. The right'to regulate interest by legislative enactment being one conceded to be within the power of the Legislature, that body can regulate or prohibit it altogether. And if previous legislation on this subject punishing the infractions of usury laws by forfeitures of the .interest have proved ineffectual to check the evil, it was perfectly competent for the Legislature to adopt more drastic measures and make it criminal. If the Legislature had the power to say what rate of interest in its own opinion'transcended a fair and just remuneration for the loan of money or property, it was competent to make any excess over such rate a misdemeanor. In our opinion it would have been perfectly competent for the Legislature to have made it a misdemeanor to exact and receive interest over and above the legal rate fixed by law, but certainly the act now under review is_not open to the objection of being unreasonable, inasmuch as it only denounces the taking of interest beyond two per cent per month as criminal. Certainly it would seem that two per cent per month would gratify the greed of the most unconscionable usurer, and this act is leveled only at that class who take and receive interest beyond that amount. Responding then to the first contention of the petitioner, we hold that the act was not beyond the legitimate powers of the General Assembly.

It would subserve no good purpose to review all the various distinctions of crime given by the various courts or text-writers from time to time. Under our system of government the people through their Legislatures have the power to define or punish crimes when not restrained by the organic law of the State or the Federal government. It is sometimes announced by some of the courts and some of the ablest law-writers of this country, that no act of the Legislature can be declared void unless it contravenes some specific section or provision of the State or Federal Constitution; on the other hand, it has been held that there are limits beyond which legislation cannot rightfully go, even though the courts may not be able to point to a positive prohibition against it in the Constitution, but this case does not call for any discussion.of that power, holding as we do that it is within the power of the Legislature to fix a maximum rate of interest for the use of money, and we have no doubt of the power of the Legislature to enforce obedience to such a law, whether by forfeitures of the interest or the principal, or by making it a misdemeanor punishable as a crime, and certainly there is nothing in the particular act before us which requires any vindication of the moderation of the Legislature in making the receiving of interest beyond two per cent per month a misdemeanor.

II. It is urged, however, that the act is unconstitutional in that it violates that portion of section one of article 14 of the amendments to the Constitution of the United States, which prohibits any State from denying “to any person within its jurisdiction the equal protection of the laws,” as well also section 53, article 4, of the Constitution of Missouri, which provides that the Legislature shall not pass any special law granting to “any corporation, association or individual any special or exclusive right, privilege or immunity.” To sustain this latter contention it' is urged that our statute relating to interest authorized the taking of certain prescribed rates, the highest being eight per cent per annum, thus money-lenders are divided into two classes, those who receive or agree to receive interest within the statutory provisions, and those who receive or agree to receive amounts in excess of the statutory limit, and it is insisted that section 2358, Revised Statutes 1899, takes this latter natural class and arbitrarily divides it into two sub-classes, to-wit, those who receive or agree to receive interest at the rate of two per cent or less, per month, and those who receive or agree to receive unauthorized interest in excess of that amount, and make criminals of the latter sub-class, but not of the former, and thus the Legislature has been guilty of class legislation. It is the rule of long established construction in this State “that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” [State ex rel. v. Tolle, 71 Mo. l. c. 650.] It is insisted that all usurers stand upon exactly the same footing, inasmuch as they are all doing something which the law does not authorize them to do, and that, therefore, it was not competent for the Legislature to select that particular class of usurers who receive or agree to receive interest in excess of the rate of two per cent per month, and exclude those usurers who receive or agree to receive more than eight per cent per year and not over two per cent per month. We cannot agree to this contention. In onr opinion it is perfectly competent for the Legislature to determine for itself what amount of usurious interest, the taking or receiving of which should constitute a criminal offense. It had already provided for the forfeiture and penalties which should attach for the taking of all usurious interest, hut in denouncing for the first time as a crime a class of usurers, it had the power to select that class which takes or receives greater interest than two per cent per month. It did not attempt to affect any other class and it is a general law as far as this class is concerned. The law operates upon every person within the limits of the State who violates it. It does not lie in the mouth of one guilty of transgressing it, to say to the Legislature, there are other classes to which this law might apply. The same could he said of nearly any other criminal statute. Had this law exempted any person who exacted more than two per cent per month hy mere arbitrary provision, there would be force in the argument of counsel, but there is no such exception to be found in the act. It applies to all persons who are in or who may come into like situations and circumstances and is therefore not special or class legislation within the the meaning of either of the constitutional provisions above relied on.

HI. But it is further insisted that the act by its very terms excludes all usurious interest except such as is taken “by means of commissions or brokerage charges,” and when thus read is clearly unconstitutional, because the equal protection of the law is not granted to. all persons by this act, because it attempts another arbitrary distinction, in this, that its provisions are plainly leveled only at that class of usurers who charge more than two per cent per month directly or indirectly, “by means of commissions or brokerage charges or otherwise,” thus excluding all other classes who receive or agree to receive such usury directly or by any other method than by means of commissions or brokerage charges. In aid of this construction the rule is invoked that in the interpretation of a statute every word and clause should, if possible, have assigned to it a meaning, leaving no useless words, and it is insisted that the clause “or otherwise” under the well-established rule of statutory construction of ejusdem generis can apply only to methods similar to those enumerated and, therefore, the act applies only to those who exact interest “by way of commissions or brokerage charges,” and not to the receiving of interest directly or indirectly. The canon of construction that all the words of the statute must be construed in such a way as to give them effect does not justify the confined and limited interpretation which counsel for petitioner would place upon the act, but will support a construction which prohibits all exactions of interest directly or indirectly by means of commissions or brokerage charges or otherwise at a greater rate than two per cent per month. We have no doubt whatever, when the whole act is read together, that it was the intention of the Legislature that it should apply to every person who should take any interest directly or indirectly by means of commissions or brokerage charges or otherwise in excess of a rate of two per cent per month, and, after all, the purpose of all rules of construction is to arrive at the intent of the lawmaking power. The whole section when read together manifests an intention to cover the exaction of usurious interest which is direct and also an exaction of usurious interest of more than two per cent per month by means of commissions or brokerage charges, and hence this third constitutional objection to the act based upon verbal criticism is without foundation.

It results that in our opinion the law assailed in this case is a perfectly constitutional enactment and that the petitioner was in lawful custody at the time of his application to this court for a writ of habeas corpus, and it is therefore ordered that the prisoner be and he is hereby remanded to the custody of the constable, and that he pay all the costs of this application.

All concur.