Jackson v. State

• Decision Date: 10 November 1908
• Docket Number: 1,416.
• Citation: 62 S.E. 726,5 Ga.App. 177
• Parties: JACKSON v. STATE.
• Court: Georgia Court of Appeals

62 S.E. 726

5 Ga.App. 177

JACKSON v. STATE.

No. 1,416.

Court of Appeals of Georgia

November 10, 1908

Syllabus by the Court.

The act of the General Assembly approved August 15, 1908 (Acts 1908 p. 83), makes it a misdemeanor "to reserve, charge or take for any loan or advance of money *** any rate of interest greater than five per cent. per month, either directly or indirectly, by way of commission for advances discount, exchange, the purchase of salary or wages, by notarial or other fees, or by any contract, or contrivance or device whatever." The sole purpose of the act is to make it penal "to reserve, charge, or take" interest for the use of money in excess of 5 per cent. per month under any contract where the relation of debtor and creditor is created or survives. The absolute sale of property is not included within the terms of the act.

[Ed Note.-For other cases, see Usury, Dec. Dig. § 31 ^[*]]

The facts set out in the accusation showing a real, absolute, and unconditional sale and transfer of personal property, where no money was loaned or advanced, where the purchase price was in fact paid, and no interest was "reserved, charged or taken," the trial court erred in not sustaining the demurrer and quashing the accusation, and the judge of the superior court erred in not granting the writ of certiorari.

[Ed. Note.-For other cases, see Usury, Dec. Dig. § 31. ^[*]]

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

R. R. Jackson was convicted in the criminal court of Atlanta for a violation of Act Aug. 15, 1908 (Acts 1908, p. 83), making it a misdemeanor to charge a greater rate of interest than 5 per cent. per month on a loan. He thereupon presented his petition for certiorari to the judge of superior court, which was refused, and he brings error. Reversed.

Rosser & Brandon, J. D. Kilpatrick, and R. B. Blackburn, for plaintiff in error.

Lowry Arnold, Sol., C. D. Hill, Sol. Gen., and D. K. Johnston, for the State.

HILL C.J.

Jackson was tried and convicted in the criminal court of Atlanta for a violation of the act approved August 15, 1908 (Acts 1908, p. 83). He thereupon presented his petition for certiorari to the judge of the superior court of Fulton county. The writ was refused, and, the judgment refusing the writ of certiorari, is brought to this court for review. The act in question is entitled "An act to make it a misdemeanor to charge any rate of interest greater than five per cent. per month, either directly or indirectly, and for other purposes." In the body of the act it is provided that "it shall be a misdemeanor *** for any person *** to reserve, charge, or take for any loan or advance of money *** any rate of interest greater than five per cent. per month, either directly or indirectly, by way of commission for advances, discount, exchange, the purchase of salary or wages, by notarial or other fees, or by any contract, or contrivance, or device whatever."

The first count in the accusation sets out in substance the following as constituting a violation of the statute: On August 19, 1908, J. D. Lindsay made a written application to sell to Jackson an account due Lindsay by the Southern Railway Company for wages or salary at that time due and already earned by Lindsay in the capacity of coal crane engineer. In this application Lindsay warranted, in order to induce Jackson to purchase the account, first, that he was employed by the Southern Railway Company as a coal crane engineer during the month of July, 1908; second, that while so employed he earned as salary $58.06; third, that there were no offsets or counterclaims against this salary or wage account; fourth, that there were no orders, drafts, garnishments, or judgments outstanding in any way affecting the account; and, fifth, that the account was just, true, and unpaid, and had not theretofore been sold or transferred. In the written application it was alleged by Lindsay, first, that the transaction between himself and Jackson was an absolute and unconditional sale, and not a loan or advance of money, nor a discount; second, that he, Lindsay, the seller of said account, was not a debtor to Jackson, the purchaser of the account; third, that the transaction was an original one, and was not a renewal or an extension of any kind. It was also agreed by Lindsay in his application, first, that he would take as the purchase price for the account offered for sale $52; second, that he authorized Lindsay, the purchaser of the account, in his name and stead and as his attorney in fact, to collect the account and to sign any and all checks, receipts, and acquittances necessary and proper to be signed in order to collect the account. Upon an acceptance, in writing, by Jackson of Lindsay's proposition, Lindsay made to Jackson a written transfer of the account referred to in substance as follows: "In consideration of the sum of $52.70 cash in hand paid, the receipt of which is hereby acknowledged, I hereby sell, transfer, and assign to R. R. Jackson *** my account for salary or wages, already by me earned, and amounting to $58.06, and due me by the Southern Railway Company. *** This is an absolute and unconditional sale of the account, and is not a loan or advance of money, and is not a discount. I am not a debtor to the purchaser. This is an original transaction, and not a renewal or extension of any kind." (Here follow statements and warranties similar to those contained in the foregoing application made by Lindsay to Jackson.) After consummating the above contract, Jackson on August 21, 1908, in Fulton county, presented to the Southern Railway Company the transfer and assignment above stated, and received from that company $58.06, being the amount due by it to Lindsay for wages earned during the month of July, 1908. The second count of the accusation is in all respects similar in its allegations to the first count, except that in this count it is alleged that Lindsay sold to Jackson a promissory note made by one A. S. Bond, dated August 18, 1908, and payable on or before August 25, 1908, to Lindsay, the note being in the usual form, with interest from maturity at 8 per cent., including 10 per cent. attorney's fees, if collected by law or through an attorney. It is alleged that the consideration which Jackson paid to Lindsay for this note was $8 in cash, and that Jackson collected from the maker of the note $10 in payment thereof.

The defendant filed a demurrer to both counts of the accusation on the ground that no offense was charged therein, and that the acts of the defendant as therein alleged were not within the prohibition of the statute upon which the accusation was framed. Other grounds of the demurrer make an attack upon the constitutionality of the act in question for various reasons. The view that we take of the case makes it unnecessary to set out these objections. The court overruled the demurrer, and the defendant was thereupon tried by the presiding judge without the intervention of a jury on an agreed statement of facts, and found guilty on both counts. In the agreed statement of facts it is expressly stipulated that the allegations set out in the first and...