Fletcher v. Tuscaloosa Federal Savings & Loan Ass'n

314 So. 2d 51, 294 Ala. 173, 1975 Ala. LEXIS 1165

• Court: Supreme Court of Alabama
• Decided: May 22, 1975
• Docket: SC 1100
• Status: Published

Opinions

ALMON, Justice.

Appellants, plaintiffs below, filed suit in circuit court seeking declaratory relief upon an indebtedness which was allegedly usurious under existing state law. The suit was styled as a class action; the members of such class being composed of all persons loaned money by appellee, Tuscaloosa Federal Savings and Loan Association, the principal on such loan being greater than $2,000.00 and less than $100,000.00 and at an interest rate in excess of 8% per annum.

The promissory note upon which appellants obligated themselves to appellee reads in pertinent part:

“FOR VALUE RECEIVED, WE promise to the TUSCALOOSA FEDERAL SAVINGS AND LOAN ASSOCIATION, TUSCALOOSA, ALABAMA, its successors and assigns, at its offices in the City of Tuscaloosa, the sum of ELEVEN THOUSAND, SIX HUNDRED AND NO/100---- Dollars, ($11,600.00--), with interest at the rate of Nine (9%)-----per centum payable in monthly payments of ONE HUNDRED-FOUR AND 37/100 -- DOLLARS (104.37-----) on the 6th day of each and every month commencing June 1, 1974, each of said payments to be applied first to the payment of interest on the then unpaid balance of principal and the remainder of said payments to be applied upon the principal indebtedness until the entire indebtedness and interest has been paid in full.”

The specific relief sought in appellants’ complaint is a declaration “that [appellants and members of appellants’ class] owes [appellee] only the principal amount borrowed on each note which charges interest greater than eight percent.”

A motion to dismiss was interposed by appellee. In addition to alleging that appellants’ complaint failed to state a claim upon which relief can be granted, appellee’s grounds for its motion to dismiss were, inter alia, (1) no charge of usurious interest rates as a matter of law, and (2) an absence of the general prerequisites for maintaining a class action under ARCP 23(a) (l)-(4) or the specific requirements of ARCP 23(b) (3).

Prior to the hearing on appellee’s motion to dismiss, the parties entered into a stipulation of facts which in essence provided that; (1) appellee had loaned appellants monies secured by a mortgage on real property, (2) the interest on that loan exceeded the amount allowed by Tit. 9, § 60, Code of Alabama, 1940, Recompiled 1958, and (3) such interest was within the maximum finance charge permitted by Section 2, Act No. 2052, 1971, p. 3290, as codified Tit. 5, § 317, Code, supra.

The trial court, in the light of the foregoing stipulated facts coupled with appellee’s 12(b)(6) motion to dismiss, treated the latter as a Rule 56 motion for summary judgment and without opinion (or a ruling on the maintainability of the suit as a class action), granted the motion.

On appeal, the sole assignment of error before us is the granting of summary judgment by the trial court.

Dispositive of the controversy is whether the legislature intended that Tit. 5, § 316 et seq., Code, supra (hereinafter, the Mini-Code) repeal those portions of Tit. 9, § 60 et seq., Code, supra (hereinafter, the Usury Law) which are repugnant. We hold that it did.

At the outset it is clear to us that the express language of the Mini-Code manifests a clear legislative intent that it apply to real estate mortgage loans: (1) Tit. 5, § 340, expressly makes “any loan, forbearance, or credit sale involving an interest in real property or the sale, lease or mortgage of an interest in real property, . .” (Emphasis ours), subject to the maximum “finance charge” provisions of Tit. 5, §§ 316(a), 317. (2) Tit. 5, § 317, in turn speaks of “[t]he maximum finance for .any loan or forbearance and for any credit sale.” (Emphasis ours). (3) Finally, Tit. 5, § 316(a) states that in determining the permissible finance charge “any discount or point paid by debtor in connection with a mortgage loan on real estate, even though paid at one time, shall be spread over the stated term of the loan or forbearance or credit sale.” (Emphasis ours).

The intention of the legislature must primarily be determined from the language of the statute itself. Where, as here, that language unambiguously calls for inclusion of loans on real estate mortgages, other rules of statutory construction are thereby rendered subordinant in the determination of legislative “intent.” In re Opinion of the Justices, 267 Ala. 114, 117, 100 So.2d 681, (1958); Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 62, 237 So.2d 108, (1970); State ex rel. Moore v. Strickland, 289 Ala. 488, 493, 268 So.2d 766, (1962); State v. Lamson & Sessions Company, 269 Ala. 610, 114 So.2d 893, (1959). There is a strong presumption that the legislature did not do a futile thing when it expressly brought real estate mortgage loans within the regulatory purview of the Mini-Code. In re Opinion of the Justices, supra.

Looking to the provisions of the Usury Law which are inharmonious with the finance charge provisions of the Mini-Code, Tit. 9, § 60, provides in pertinent part:

“. . . [T]he rate of interest by written contract is not to exceed eight dollars upon one hundred dollars for one year; . . .”

By contrast the Mini-Code’s definition of “finance charge,” Tit. 5, § 316(a), reads:

“ ‘Finance charge’ shall include all charges payable directly or indirectly by the debtor and imposed directly or indirectly by the creditor as an incident to the extension of credit, including interest, time price differential, points or discount paid directly by the debtor, service, carrying or other charge however denominated, loan fee, credit or investigation fee, . . . .”

In turn, Tit. 5, § 317, then sets as a maximum finance charge the following:

“The maximum finance charge for any loan or forbearance and for any credit sale (except under open end credit plans) may equal but may not exceed the greater of the following:

“(b) If the original principal amount of the loan or original amount financed exceeds $2,000, $8 per $100 per year of the original principal amount of the loan or amount financed.

“The maximum finance charge under paragraphs (a) and (b) shall be determined by computing the maximum rates authorized by paragraphs (a) and (b) on the original principal amount of the loan or original amount financed for the full term of the contract without regard to scheduled payments and the maximum finance charge so determined (or any lesser amount) may be added to the original principal amount of the loan or original amount financed.”

The same subject matter, interest, is dealt with in an inconsistent manner in the foregoing provisions of the Usury Law and the Mini-Code. This Court in Allgood v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 501, 71 So. 724, (1916) held:

“ ‘Where an amendment is made that changes the old law in its substantial provisions, it must, by a necessary implication, repeal the old law so far as they are in conflict. And where a new law, whether it be in the form of an amendment or otherwise, covers the whole subject-matter of the former, and is inconsistent with it, and evidently intended to supersede and take the place of it, it repeals the old law by implication.’ ” (Citations omitted).

By reference to the prevailing conditions in the state and national money markets in 1971, the year in which the Mini-Code was enacted, we have no hesitation in reaching the conclusion that the legislature' clearly intended that it should cover the entire field of regulation of real estate mortgage loans made by institutions subject to the “finance charge” ceilings contained therein.¹ Inasmuch as the legislature sought to deal comprehensively with this mode of credit transaction and by including provisions in the Mini-Code incompatible with the 8% simple interest ceiling of the pre-existing Usury Law, the Mini-Code repealed by implication the repugnant sections of the old statute. Such is the rule in this state. Vaughan v. McCartney, 217 Ala. 103, 115 So. 30 (1927).

Repeal by implication is admittedly not a favored rule of statutory construction, but in State v. Bay Towing and Dredging Company, 265 Ala. 282, 289, 90 So.2d 743, 749 (1956), we find:

“In Alabama, the law governing implied repeals is well-settled and the cases on this point are singularly consistent. See 18 Ala.Dig., Statutes, Key 159 & 160. A concise statement of the rule is contained in City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159, 162:

“ ‘Repeal by implication is not fav.ored. It is only when two laws are so repugnant to or in conflict with each other that it must be presumed that the Legislature intended that the latter should repeal the former. * * *

“Implied repeal is essentially a question of determining the legislative intent as expressed in the statutes. Ex parte Jones, 212 Ala. 259, 260, 102 So. 234. When the provisions of two statutes are directly repugnant and cannot be reconciled, it must be presumed that the legislature intended an implied repeal, and the later statute prevails as the last expression of the legislative will. Union Central Life Insurance Co. v. State, 226 Ala. 420, 423, 147 So. 187; Fidelity & Deposit Co. of Maryland v. Farmers’ Hardware Co., 223 Ala. 477, 479, 136 So. 824.”

In holding that the maximum legal interest rates of the Usury Law and the maximum finance charges of the Mini-Code are irreconcilable under the facts of this case, we are not unmindful of the persuasive argument of appellant in brief that the two provisions can be ascribed mutually exclusive fields of operation thereby avoiding any repeal by implication. Specifically, that as interest is only one component of the Mini-Code’s definition of “finance charge,” it is still subject to the legal maximum rate of the Usury Law — the remaining finance charges authorized by the Mini-Code constituting the balance of the total finance charge allowable under Tit. 5, § 317. We have rejected this construction.

The pre-Mini-Code cases cited by appellant which stand for the proposition that not all charges for the use of money can be properly called interest², graphically demonstrate why the legislature sought to statutorily put an end to the ofttimes imponderable queries as to where, as a matter of law, the demarcation between “interest” and additional charges for the use of money fell. For the most part, this troublesome issue had been rendered moot by the inclusive definition of “finance charge” contained in the Mini-Code. We note that in addition to resolving this issue, the Mini-Code has protected the borrower with an absolute litmus of whether he has been charged for the use of money in excess of that amount allowed by law, while at the same time providing prospective statutory flexibility in the light of an unstable money market.

In holding that the legislature intended the “finance charge” provision of the Mini-Code to be the sole indicia of what constitutes the maximum legal amount allowable for the use of money loaned thereunder, we have adhered to the rule set out in American Standard Life Ins. Co. v. State, 226 Ala. 383, 384, 147 So. 168 (1933):

“ ‘In the construction of a particular statute, . . . endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time.’ 59 Corpus Juris, 1043 ; 25 R.C.L. 1063, § 287; Birmingham v. So. Express Co., 164 Ala. 529, 51 So. 159; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712.”

There remains the question of the area of operation of the Usury Law, for if effect can be given consistent with the legislative intent to part of the provisions of an old statute, without violation of the provisions of the new, repeal by implication can be said to be only partial. Levy, Aronson & White v. Jones, 208 Ala. 104, 106, 93 So. 733 (1922).

Certainly, the 6% maximum interest rate where interest is contemplated but not stipulated in written contract, presents no conflict with any of the provisions of the Mini-Code and accordingly no repeal of that provision has occurred.

In holding that the provisions of the Usury Law restricting the maximum legal interest rate is repealed for those credit transactions now regulated by the Mini-Code, we pretermit, for want of standing on the part of appellants, a ruling on their challenge of the statutory definition of “creditor” under Amendment XIV, U. S. Constitution or Art. 13, § 252, Alabama Constitution of 1901. Where a particular litigant is not within the group of persons affected by a statute or portion thereof which is allegedly unconstitutional, such litigant lacks standing to raise such constitutional issue. Marcet v. Board of Plumbers Examination and Registration of Alabama, 249 Ala. 48, 50, 29 So.2d 333 (1947); State ex rel. Highsmith v. Brown Service Funeral Co., 236 Ala. 249, 253-54, 182 So. 18 (1938).

We are therefore of the opinion that the trial court ruled properly in granting judgment for appellee.³

The judgment is due to be and hereby is

Affirmed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, SHORES and EMBRY, JJ., concur. JONES, J., concurs specially. FAULKNER, J„ dissents.

1 . To assist the Court in arriving at this conclusion, there is ample authority that we look not only to the prevailing economic situation at the time of its enactment, but the economic consequences a particular construction might entail .as well. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167, (1974) ; State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So.2d 509, (1974) ; Mitchell v. McGuire, 244 Ala. 73, 12 So.2d 180 (1943); Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275, (1971). Regarding the former, we are willing to take judicial notice of the fact that by 1971 interest rates on the national money market were rapidly approaching and in many cases had already exceeded those of our own usury law. In order for there to be a continuing supply of mortgage money available for instate borrowers, action by the legislature was imperative. Within the confines of well-established rules of statutory construction, we are naturally inclined to look to the historical context which here is a most persuasive indicia tending to validate the manifestation of the legislature’s response to this problem.

2 . Darden v. Schuessler, 154 Ala. 372, 45 So. 130 (1907) ; Commercial Credit Company v. Tarwater, 215 Ala. 123, 110 So. 39 (1926) ; Pryor v. Associates Discount Corporation, 43 Ala.App. 394, 191 So.2d 234 (1966).

3 . The ruling by the circuit court is without prejudice to any members of appellants’ alleged class. Neither notice nor an opportunity to be heard was ever afforded such persons. Indeed, the record does not reflect that the circuit court made any ruling as to the maintainability of their suit as a class action required by ARCP 23(c)(1). Failure to so rule generally would necessitate remanding the cause to the trial court for such a determination. However, as we have reviewed this appeal on its merits ruling adversely to the proponent of the class, such a remandment would have served only to protract ultimate resolution of the merits.