McLamb v. Phillips

129 S.E. 570, 34 Ga. App. 210, 1925 Ga. App. LEXIS 155

• Court: Court of Appeals of Georgia
• Decided: July 20, 1925
• Docket: 16115
• Status: Published

Opinions

Jenkins, P. J.

1. While statutes imposing license taxes and providing for their collection, when designed merely to raise revenue, as in the license of real-estate agents, do not impliedly nullify contracts made in contravention of their provisions (Toole v. Wiregrass Development Co., 142 Ga. 57, 60-63) ; the general rule of law is that where the license required by the statute is not imposed only for revenue purposes, but requires registration or licensing primarily for the purpose of protecting the public from acts mala in se, or detrimental to good morals, or from improper, incompetent, or irresponsible persons, as in the case of unregistered or unlicensed druggists or physicians, the'ir imposition amounts to a positive prohibition of a contract made without a compliance with and in violation of the statute, and by implication renders such a contract void and unenforceable. Taliaferro v. Moffett, 54 Ga. 150, 153; Murray v. Williams, 121 Ga. 63; Jalonick v. Greene County Oil Co., 7 Ga. App. 309, 311; Singleton v. State, 14 Ga. App. 527 (3), 533; 37 Corpus Juris, 260; 17 R. C. L. 560.

2. The act of 1904 (p. 79), embodied in the Civil Code (1910), §§ 3446-3465, prohibits any “person, firm, or corporation” from engaging “generally, regularly, or collaterally to any other business, in the business of making loans on . . wages, or salaries, or in the business of buying wages or salaries, without first obtaining a license for carrying on such business.” (§ 3446.) Such a license, where the business is to be conducted within the limits of an incorporated city or town, must be obtained from the proper municipal officer issuing licenses, and where conducted without such limits, from the ordinary of the county. (§ 3447.) As a preliminary condition to the granting of such a license, the applicant is required to file with the mayor of the town, or the ordinary of the county,, a five hundred dollar bond, conditioned upon “the faithful performance by the licensee of the duties and obligation pertaining to the business so licensed, and the prompt payment of any judgment which may be recovered against said licensee on account of damages or'other claim arising directly or collaterally from any loan of money or sale of wages or salary.” (§ 3449.) The only provision of this act that relates to the raising of revenue or to monies derived from the issuance of such licenses and the giving of such bonds is that the “ordinary or officer issuing the license shall receive, for each license so issued, a fee of one dollar and fifty cents.” Thus, the manifest purpose of these statutes is not the raising of revenue, but is the protection of that portion of the population which, because of small means or temporary adversity, is compelled to resort to the borrowing of money on small personal property security from, or the sale of salaries to, improper or irresponsible lenders who have failed to comply with the statutes provided for such protection.

Decided July 20, 1925. Adhered to on rehearing, September 2, 1925. H. P. Gobi, R. R. Jackson, for plaintiff. F. R. Youngblood, Dorsey, Howell & Heyman, Mark Bolding, for defendant.

3. Irrespective of whether or not the judge of the superior court was right in overruling the certiorari of the lender or purchaser of the defendant debtor’s salary from a judgment of the municipal court* in favor of the defendant, on the ground that the transaction was a loan and not a sale, the judgment of the superior court was nevertheless correct, since, under the undisputed evidence and the testimony of the plaintiff himself, he was at the time of the contracts in question “engaged in the business of buying wages and salaries,” as defined by the statute, and “had not complied with the requirements of the act of 1904, embodied in the code sections 3446 et seq. of the Code of 1910, as to giving bond and making oath and obtaining the license required.”

Judgment affirmed.

Stephens and Bell, JJ., concur.