Ex Parte Berger

Decision Date22 December 1905
Citation193 Mo. 16,90 S.W. 759
PartiesEx parte BERGER.
CourtMissouri Supreme Court

In Banc. Original application by Edward Berger for a writ of habeas corpus against one Lenz. Denied.

Kinealy & Kinealy and Reed, Yates, Mastin & Howell, for petitioner. H. S. Hadley and Frank Blake, for respondent.

GANTT, J.

This is an original proceeding by habeas corpus for the release of the petitioner on the ground that section 2358, Rev. St. 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 22d day of August, 1905, in said St. Louis county, did then and there receive from one Frank T. Henry, interest at a greater rate than 2 per cent. per month, for the use of $100, 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, Rev. St. 1899, is in these words: "Sec. 2358. Receiving greater interest 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 forbearance or use of money or other commodity, any interest at a rate greater than two per cent. per month, shall be 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, association or individual any special or exclusive right, privilege or immunity."

1. 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." Article 4, Const. Mo. 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 the 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 no power to declare the taking of usurious interest a criminal offense. It may be conceded that at common law usury was not an indictable offense, 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, or to 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 (section 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., loc. cit. 83, 55 S. W. 260, section 3710, Rev. St. 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 a...

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27 cases
  • Ravitz v. Steurele
    • United States
    • Kentucky Court of Appeals
    • 21 Diciembre 1934
    ... ... law, nor class legislation. Cavanaugh v. People, 61 ... Colo. 292, 157 P. 200; Althaus v. State, 99 Neb ... 465, 156 N.W. 1038; Ex parte Alabama Brokerage Co., 208 Ala ... 242, 94 So. 87 ...          It is ... always competent for the Legislature to direct its enactments ... usury and subject the offender to certain forfeitures and ... civil penalties, but not to a criminal prosecution. Ex parte ... Berger, 193 Mo. 16, 90 S.W. 759, 3 L. R. A. (N. S.) 530, 534, ... 112 Am. St. Rep. 472 [5 Ann. Cas. 383]; State v. Sherman, 18 ... Wyo. 169, 105 P. 299, ... ...
  • Kelleher v. Minshull
    • United States
    • Washington Supreme Court
    • 27 Noviembre 1941
    ... ... 718, 55 S.Ct. 835, 79 L.Ed. 1673 ... Alabama: Bullard Investment Co. v. Ford, 1921, 18 ... Ala.App. 167, 89 So. 837; Ex parte Alabama Brokerage Co., ... 1922, 208 Ala. 242, 94 So. 87, denying certiorari to review ... Alabama Brokerage Co. v. Boston, 1922, 18 ... Mass. 19, 56 N.E. 896; Dewey v. Richardson, 1910, ... 206 Mass. 430, 92 N.E. 708 ... Missouri: Ex parte Berger, 1906, 193 Mo. 16, 90 S.W. 759, 3 ... L.R.A.,N.S., 530, 112 Am.St.Rep. 472, 5 Ann.Cas. 383 ... Nebraska: Althaus v. State, 1916, 99 ... ...
  • State ex rel. Leake v. Harris
    • United States
    • Missouri Supreme Court
    • 3 Febrero 1934
    ... ... Ed. 746; State v. Simmons Hardware Co., 109 Mo. 118, 18 S.W. 1125; United States v. American Tobacco Co., 221 U.S. 106, 55 L. Ed. 663; Ex parte Brown, 72 Mo. 94; State ex rel. v. Haid, 30 S.W. (2d) 468; State ex rel. v. Woods, 316 Mo. 1032, 292 S.W. 1035; State ex rel. v. Trimble, 254 Mo ... 322, 226 S.W. 222; Home Bond Co. v. McChesney, 239 U.S. 568; Natl. Discount Co. v. Evans, 272 Fed. 573; Secs. 4421, 5562, R.S. 1929; Ex parte Berger, 193 Mo. 16; State v. Haney, 130 Mo. App. 95; Secs. 6732 and 6733, Shannon's Code of Tennessee; Sec. 2969, R.S. 1929; Heller v. Lutz, 254 Mo. 709; ... ...
  • Kansas City v. Markham
    • United States
    • Missouri Supreme Court
    • 12 Noviembre 1936
    ... ... 652; State v. Simmons Hardware Co., 109 Mo. 118, 18 ... S.W. 1126; United States v. Am. Tobacco Co., 221 ... U.S. 106, 55 L.Ed. 663; Ex parte Brown, 72 Mo. 94; State ... ex rel. v. Haid, 325 Mo. 1137, 30 S.W.2d 468; State ... ex rel. v. Trimble, 254 Mo. 542, 163 S.W. 865; State ... ex ... Tenn. 332, 226 S.W. 222; Home Bond Co. v. McChesney, ... 239 U.S. 568; Natl. Discount Co. v. Evans, 272 F ... 573; Ex parte Berger, 193 Mo. 16; State v. Haney, ... 130 Mo.App. 95; Secs. 6732, 6733, Shannon's Code of ... Tenn.; Heller v. Lutz, 254 Mo. 709; Tolman v ... Union ... ...
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