King v. State

• Decision Date: 19 August 1911
• Parties: KING et al. v. STATE.
• Court: Georgia Supreme Court

71 S.E. 1093

136 Ga. 709

KING et al. v. STATE.

Supreme Court of Georgia

August 19, 1911

Syllabus by the Court.

The act of 1908 (Acts 1908, p. 83), embodied in Civ. Code 1910, §§ 3444, 3445, providing, among other things, that it shall be a crime "to reserve, charge, or take, for any loan or advance of money or forbearance to enforce the collection of any sum 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," does not make unlawful a transaction wherein there is a charge by way of commission for advances, discount, exchange, or fees, or the purchase of salary or wages, save where connected with a loan and directly or indirectly constituting all or a part of a reservation, charge, or taking for a loan or advance of money, or forbearance to enforce the collection of a sum of money, a rate of interest greater than 5 per cent. per month.

(a) The Legislature has the power to fix the maximum rate of interest which may be exacted for the use of money, and to make penal the exaction of a greater rate of interest than 5 per cent per month.

(b) The act in question does not violate article 1, § 1, par. 2 article 1, § 1, par. 3, or article 1, § 5, par. 2 of the Constitution of this state, nor does it violate the ninth or fourteenth amendment to the Constitution of the United States. The act does not violate article 1, § 4, par. 1, of the Constitution of this state.

The act in question does not prohibit the sale and assignment of "choses in action arising ex contractu."

(a) The fact that "there existed at the time of the passage of this act general laws having uniform operation throughout the state, fixing the rate of interest that might be charged, and providing penalties for the violation of these general laws," does not cause the act to be in conflict with the provisions of article 1, § 4, par. 1, of the Constitution of this state, that no special law shall be enacted in any case for which provision has been made by an existing general law.

The act does not refer to more than one subject-matter, and does not contain matter different from that expressed in its title and therefore does not violate article 3, § 7, par. 8, of the Constitution of this state, providing: "No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof," the title of the act being as follows: "An act to make it a misdemeanor to charge any rate of interest greater than 5 per cent. per month, either directly or indirectly, and for other purposes."

Certified Questions from Court of Appeals.

R. D. King and others were indicted for a violation of the statute prohibiting the taking of interest above 5 per cent. a month. On questions certified by the Court of Appeals. Questions answered.

The Court of Appeals certified the following questions:

"In the foregoing case an act of the General Assembly of this state, to wit, an act approved August 15, 1908 (Acts 1908, p. 83), entitled 'An act to make it a misdemeanor to charge any rate of interest greater than 5 per cent. per month, either directly or indirectly, and for other purposes,' is attacked as being unconstitutional; and a decision of the following constitutional questions involved is necessary to a proper determination of the case:

"First. Is said act unconstitutional, null, and void upon the following alleged ground: 'Said act denies to the defendants [who have been indicted for a violation of it by charging and reserving from a named person a sum of money greater than 5 per cent. per month as interest for a loan of money] the impartial and complete protection guaranteed under article 1, § 1, par. 2 (Civ. Code 1895, § 5699), of the Constitution of this state, and denies to the defendants the rights reserved and retained in the ninth amendment (Civ. Code 1895, § 6022) of the Constitution of the United States, for that all persons are guaranteed the right to sell, own, and buy every species of property not evil in itself, and whose use is not hurtful to the public health and public morals. The aforesaid act denies the impartial and complete protection to persons owning and desiring to sell accounts for salary and wages. And for that all persons are guaranteed the right to contract and receive for their services such price as may be agreed upon between the contracting parties. The act in question seeks to deny this impartial and complete right by limiting the compensation that may be contracted for for services rendered, for that the statutes of this state fix notarial fees. The act aforesaid denies to the notary rendering services in cases where money is loaned the impartial and complete protection of this general law fixing notarial fees.'

"Second. Is said act unconstitutional, null, and void upon the following alleged ground: 'Said act is in violation of article 1, § 1, par. 3 (Civ. Code 1895, § 5700), of the Constitution of this state, and is in violation of the fourteenth amendment of the Constitution of the United States (Civ. Code 1895, § 6030), in that it deprives the defendants of their liberty and property without due process of law, and in that it denies to these defendants the equal protection of the laws.'

"Third. Is said act unconstitutional, null, and void for the following alleged reason: 'Said act is in conflict with article 1, § 4, par. 1 (Civ. Code 1895, § 5732), of the Constitution of this state, in that it is a special act concerning matters for which provision has been made by existing general laws. For illustration, there existed at the time of the passage of this act general laws having uniform operation throughout the state, fixing the rate of interest that might be charged, and providing penalties for the violation of these general laws. There also existed at the time of the passage of this act general laws permitting the selling and assignment of choses in action arising ex contractu, and the aforesaid act is a special act in conflict with these general laws.'

"Fourth. Is said act unconstitutional, null, and void for the following alleged reason: 'Said act is in violation of article 1, § 5, par. 2 (Civ. Code 1895, § 5735), of the Constitution of this state. The people of this state have always enjoyed the inherent right to sell, buy, and own and assign every species of property not evil in itself and not hurtful to the public health or public morals, and not destructive of the public peace. The aforesaid act seeks to deprive the defendants of this inherent right.'

"Fifth. Is said act unconstitutional, null, and void for the following alleged reason: 'The aforesaid act is in violation of article 3, § 7, par. 8, of the Constitution of this state (Civ. Code 1895, § 5771), in that it refers to more than one subject-matter, and in that it contains matter in the body of the act different from what is expressed in the title thereof. The title of the act only prohibits the charging of a greater rate of interest than 5 per cent. per month. The body of the act seeks to prohibit the charging of commission, the charging of exchange, the sale or purchase of accounts for salary or wages, and the charging of notarial fees."'

Rosser & Brandon, Candler, Thomson & Hirsch, R. B. Blackburn, Lamar Hill, and J. D. Kilpatrick, for plaintiffs in error.

C. D. Hill, Sol. Gen., D. K. Johnston, Jno. L. Hopkins & Sons, H. W. Dorsey, Sol. Gen., and Ogburn, Dorsey & Shelton, for the State.

HOLDEN J.

1. The title to the act attacked as unconstitutional is as follows "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." Section 1 of the act, omitting an exception with respect to licensed pawnbrokers, which is hereinafter set out, is as follows: "Be it enacted by the General Assembly of the state of Georgia, that it shall be a misdemeanor, punishable under section 1039 of the Penal Code of this state, for any person, company, or corporation to reserve, charge or take for any loan or advance of money or forbearance to enforce the collection of any sum of money, any rate of interest greater than 5 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; save and except only *** [an exception with reference to licensed pawnbrokers]." Section 2 is as follows: "Be it further enacted, that this statute shall not be construed as repealing or impairing the usury laws now existing, but as being cumulative thereof." Section 3 repeals conflicting laws. This act was designed to prohibit, and does prohibit, transactions "for any loan or advance of money or forbearance to enforce the collection of any sum of money," where the rate of interest reserved, charged, or taken is greater than 5 per cent. per month. Under the act a transaction really involving usury amounting to a charge for the use of money of interest in excess of 5 per cent. per month would involve a crime on the part of the one reserving, charging, or taking the usury, where there was a charge "by way of commission for advances, discount, or exchange," or a charge of fees referred to in the act, or the purchase of salary or wages, where such charges or purchase are connected with a loan and directly or indirectly constitute all or a part of a reservation, charge, or taking, for a loan or advance of money, or forbearance to enforce the collection of a sum of money, a rate of...