Ex parte Berger

• Decision Date: 23 January 1906
• Citation: 90 S.W. 759,193 Mo. 16
• Parties: EX PARTE EDWARD BERGER
• Court: Missouri Supreme Court

90 S.W. 759

193 Mo. 16

EX PARTE EDWARD BERGER

Supreme Court of Missouri

January 23, 1906

Petitioner remanded.

Kinealy & Kinealy for petitioner.

(1) Section 2358 is unconstitutional (Const. U. S. amend. 14 sec. 1; Const. Mo. art. 2, sec. 30), because it denounces and punishes as a crime the doing of an act which it is not within the power of the Legislature to so denounce and punish, and it thereby deprives petitioner of his liberty without due process of law. This conclusion results from a consideration of the following propositions, viz.: (a) Courts will never enforce void contracts, but they will voidable ones. Och v. Railroad, 130 Mo. 27; Mitchell v Parker, 25 Mo. 31; Ins. Co. v. Railroad, 74 Mo.App. 89. (b) Usurious contracts are not void, but only voidable. Montany v. Rack, 10 Mo. 318; Ferguson v. Soden, 111 Mo. 208; Davis v. Tandy, 107 Mo.App. 437; Smith v. Mohr, 64 Mo.App. 39; Johnson v. Simmons, 61 Mo.App. 395; Am. Rubber Co. v. Wilson, 55 Mo.App. 656. (c) Courts will not enforce contracts which are contrary to our laws or public policy. McDearmott v. Sedgwick, 140 Mo. 172; 15 Am. and Eng. Ency. Law (2 Ed.), 935; McGinnis v. Mo. C. & F Co., 174 Mo. 225; Guerney v. Moore, 131 Mo. 650. (d) Foreign contracts, if legal in their domicile, will be enforced in Missouri, although usurious under our laws. Bank v. Cooper, 85 Mo.App. 383; Land Co. v. Rhodes, 54 Mo.App. 129. There is no iniquity or moral turpitude in usury. Bank v. Harrison, 57 Mo. 503; Adler Co. v. Corl, 155 Mo. 149; Webb on Usury, sec. 488, p. 570. (e) The Legislature cannot arbitrarily declare an act a crime if it really be not such, and such an enactment will be declared unconstitutional by the courts. State v. Layton, 160 Mo. 474; In re Flukes, 157 Mo. 125. (f) A crime is a wrong against the public at large, and the power to declare a given act a crime proceeds from the exercise of the police power of the State. 12 Cyc. Law & Proced., 129; 8 Am. and Eng. Ency. Law (2 Ed.), 248; 1 Tiedeman, State & Fed. Control of Pers. & Prop., p. 179; Clark's Crim. Law, p. 1; United States v. Eaton, 144 U.S. 677; Const. of Mo., art. 6, sec. 38; Gillespie v. People, 188 Ill. 176; Black v. Schwartz, 27 Utah 387. (g) An act which is essentially a wrong against the individual can never be punished as a crime if done with the consent of the individual. State v. West, 157 Mo. 309; 1 Wharton's Crim. Law, secs. 141 and 143; Desty's Crim. Law, sec. 33. (2) Section 2358 is unconstitutional (Const. U.S. amend. 14, sec. 1; Const. of Mo., art 4, sec. 53.), because it is a special law granting special privileges and immunities, and denies to petitioner the equal protection of the law. Howell v. Stewart, 54 Mo. 400; State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 95; State ex rel. v. Miller, 100 Mo. 439; Dunne v. Railroad, 131 Mo. 1.

Reed, Yates, Mastin & Howell also for petitioner.

Two points are made by the petitioner in his brief as to the constitutionality of the statute under which petitioner was arrested: 1. The section is unconstitutional because it punishes as a crime the doing of an act which it is not within the power of the Legilature to so punish, and thereby deprives petitioner of his liberty without due process of law. 2. The statute is unconstitutional because it is a special law, granting special privileges and immunities and denies to petitioner the equal protection of the law. In support of petitioner's second point, we desire to suggest to the court that in addition to the classification of the persons by petitioner into those who take or receive or agree to take or receive usurious interest at a rate greater than two per cent per month, and at a rate less than two per cent per month under the statute, there is another distinctive class aimed at by the statute, and as it appears to us the only class contemplated by the statute, namely, those who shall take or receive or agree to take or receive directly or indirectly by means of commissions or brokerage charges or otherwise, any interest at a greater rate than two per cent per month, etc. A comparison of other usury sections of the statute of Missouri and the statutes of other States show that the words "directly and indirectly" in usury statutes are in common use without language explaining or defining their meaning. Sec. 1, ch. 133, Laws 1889, South Dakota; sec. 1, ch. 63; Bank v. Allen, 28 Conn. 101. The Missouri statutes applicable to the subject are as follows: secs. 1934, 2358, 3708, 3709, R. S. 1899. In all the statutes and cases in construction thereof, the words "directly or indirectly" have been deemed sufficient to cover every device invented for the purpose of charging interest, and the words used by section 2358, "by means of commissions or brokerage charges," are evidently designed as words of limitation. In sections 1934 and 3708, Revised Statutes 1899, the words "directly or indirectly" without more are used. It cannot be contended that these statutes would not cover an indirect charge of interest by means of brokerage and commissions -- therefore, the conclusion from an examination of these sections is that the qualifying words used in section 2358 "by means of commissions or brokerage charges," etc., were designed for the purpose of limiting the effect of the statute to those words. In section 3709, the words "directly or indirectly" are omitted, and in that section the words are added, "whether paid as commission or brokerage, or as payment upon the principal, or as interest on said indebtness." Any other construction of this statute would leave the words, "by means of commissions or brokerage charges," wholly without meaning or purpose in the statute, and the words are intended to define the kind of illegal charge of interest aimed at by the statute. It is a common canon of construction that all the words of a statute must be construed in such way as to give them effect if possible, and in connection with the words that accompany them. State v. Gilmore, 98 Mo. 206; State v. Hays, 78 Mo. 600. It will be observed that the act does not make it an offense to "directly or indirectly" take or receive or agree to take or receive, for the forbearance or use of money, any interest at a rate greater than two per cent, but the offense consists in taking, etc., such interest "by means of commissions or brokerage charges or otherwise," thus placing outside the ban of the statute all of those usurers who take such interest by other or different methods. Inasmuch as the words "or otherwise," under the well-established rule of statutory construction ejusdem generis, can apply only to methods similar to those enumerated, it is clear that those affected by the act are only those who exact interest by way of commissions or brokerage charges. That the words "or otherwise" can have no more extended meaning is clear from our Missouri authorities. State v. Schuchman, 133 Mo. 116; State v. Krueger, 134 Mo. 263; State v. Edwards, 109 Mo. 320; State v. Gilmore, 98 Mo. 213. This being true, the statute leaves all persons free to receve or agree to receive usury in excess of two per cent per month, if haply they can invent some means of providing for its payment other than by way of commissions or brokerage charges. If it be said that section 2358 is susceptible of another construction if the punctuation be changed from that used by the Legislature, we reply that the punctuation is a part of the act, and the act being penal in its nature, a defendant is not to be punished by having resort to this necessity. U. S. v. Voorhees, 9 F. 143; U. S. v. Pelletran, 14 Blatchf. (U.S.) 126; Tyrrell v. New York, 159 N.Y. 242; Commissioners v. Elwood, 193 Ill. 308.

Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.

(1) In the exercise of its police power, the State may enact any law that is designed to suppress or punish a wrong, to mitigate an evil, to prevent extortion or oppression, or which tends to preserve the general welfare of the community. No person has an absolute right to engage in any business which contravenes these purposes. State ex rel. v. Mercantile Co., 184 Mo. 160; State ex rel. v. Associated Press, 159 Mo. 437; Westport v. Mulholland, 159 Mo. 86; State v. Whitaker, 160 Mo. 59; State Layton 160 Mo. 474; State v. Searcy, 20 Mo. 489; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Thompson, 160 Mo. 333; St. Louis v. McCann, 157 Mo. 301; State v. Bixman, 162 Mo. 1; State v. Cantwell, 179 Mo. 245; State v. Loomis, 115 Mo. 307; State ex rel. v. Firemen's Fund Ins. Co., 152 Mo. 1; State v. Addington, 12 Mo.App. 214; Morrison v. Morey, 146 Mo. 543; Durant v. Coal Co., 97 Mo. 65; Humes v. Railroad, 82 Mo. 231; Cofer v. Riseling, 153 Mo. 633; Kreibohm v. Yancey, 154 Mo. 67; State v. Hamey, 168 Mo. 167; St. Louis v. Galt, 179 Mo. 8; State v. Loomis, 20 S.W. 332. (2) A statute which relates to persons or things as a class is a general law, while a statute relating to particular persons or things of a class is a special law. If every person within the operation of the act is affected generally by the act, it is a general, not a special law. Phillips v. Railroad, 86 Mo. 540; State ex rel. v. Tolle, 71 Mo. 654; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; State v. Bishop, 128 Mo. 373; State ex rel. v. Yancey, 123 Mo. 391; State ex rel. v. Ins. Co., 150 Mo. 113; Holden v. Hardy, 169 U.S. 394; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Marion Co., 128 Mo. 427; Hamman v. Central Coal Co., 156 Mo. 232; State ex rel. v. Firemen's Fund Ins. Co., 152 Mo. 1; Ex parte Loving, 178 Mo. 194; State ex rel. v. Wasburn, 167 Mo. 680. (3) Missouri courts have recognized the right of the Legislature to regulate the interest on money, and to...