Mclamb v. Phillips
| Decision Date | 20 July 1925 |
| Docket Number | (No. 16115.) |
| Citation | 34 Ga.App. 210,129 S.E. 570 |
| Parties | McLAMB . v. PHILLIPS. |
| Court | Georgia Court of Appeals |
Rehearing Granted Aug. 21, 1925.
Judgment Adhered to Sept. 2, 1925.
(Syllabus by Editorial Staff.)
Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.
Action by S. McLamb against Clifton Phillips. Judgment for defendant, and plaintiff brings error. Affirmed.
H. P. Cobb, of Savannah, and R. R. Jackson, of Atlanta, for plaintiff in error.
F. R. Youngblood, of Savannah, and Dorsey, Howell & Heyman, of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
JENKINS, P. J. [1] 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, 82 S. E. 514), 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, their 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, 48 S. E. 686; Jalonick v. Greene County Oil Co., 7 Ga. App. 309, 311, 66 S. E. 815; Singleton v. State, 14 Ga. App. 527 (3), 533, 81 S. E 596; 37 Corpus Juris, 260; 17 R. C. D. 560.
2. The act of 1904 (page 79), embodied in 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." Section 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. Section 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 $500 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." Section 3449. The only provision of this act that relates to the raising of revenue or to moneys 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 fiftycents." 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, or to the sale of salaries, from improper or irresponsible lenders who have failed to comply with the statutes provided for such protection.
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.
On Rehearing.
This cause arose on a petition by an alleged purchaser or assignee of wages, against the employee, to collect the amounts represented by two alleged assignments or bills of sale, one for $20.40 and the other for $6.80. The municipal court found for the defendant, and the superior court overruled the plaintiff's certiorari, basing its judgment primarily on the ground that the trial court, under the evidence, was authorized to find that "the transaction was not a bona fide purchase of wages but a loan." There was testimony, as referred to in the judgment, that $15 was actually paid for the $20.40 alleged assignment or sale, and that, several months after this alleged assignment or bill of sale was executed, the defendant executed another assignment in the same amount, but no money was paid to him, such assignment being made "for no other consideration than the further forbearance to collect the amount" previously assigned, and that on the latter date the $6.80 assignment was executed; $5 being paid as its consideration. The plaintiff testified also, in referring to the $20.40 assignment, that "there bad been several previous transactions * * * involving the same principal sum and the same rate of discount"; that "it was often several months before he received payment of the money advanced; and that he forbore enforcing the payment by sending in notice to the employing rail road company or otherwise for the reason that it would inconvenience [defendant] and everybody concerned." We cannot say that, under this testimony, the municipal court, sitting without a jury, and the. superior court on certiorari, were unauthorized to find, as to the $20.40 transaction, that, if the original transaction were a bona fide purchase, "there was no room for other transactions involving the same principal sum, neither was there room for the application of a rate of discount, " and that "forbearance has no place" in such a transaction. But there appears to be no evidence authorizing such a finding as to the $6.80 assignment. For this reason, and as an additional reason why the judgment of the court below was correct as to the $20.40 item, irrespective of such finding, the original syllabus of this court was planted upon the further ground that both transactions were illegal and unenforceable, even if they be taken as bona fide sales or assignments, since the plaintiff admittedly was then engaged in the "business of buying wages or assignments, " and had failed to give the preliminary bond and obtain the license required by the act of 1904, embodied in sections 3446 to 3465, inclusive, of the Civil Code of 1910. Ga. L. 1904, p 79. It is only necessary to consider this phase of the ruling, to which the motion for rehearing and the able and scholarly briefs of counsel are directed.
While it is the duty of courts and juries to strip from an alleged assignment or sale of wages the false and fictitious vestments in which it may be clothed, and to look to real facts and circumstances which manifest a usurious loan, notwithstanding express written verbiage, both the Supreme Court and this court have uniformly sustained bona fide actual assignments and sales made in conformity to statute. Jackson v. Johnson, 157 Ga. 189, 121 S. E. 230; Covington v. Rosenbusch, 148 Ga. 459 (1), 97 S. E. 78; Central of Ga. R. Co. v. King Bros., 137 Ga. 369, 73 S. E. 632; King v. State, 136 Ga. 709, 71 S. E. 1093; Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (1), 124 S. E. 813.
The Legislature, by the act of 1904 (Civil Code, §§ 3446-3465), as quoted in the second division of the syllabus, enacted an express and positive prohibition against any person engaging "generally, regularly, or collaterally * * * in the business of buying wages or salaries, without first obtaining a license, for carrying on such business, " and required the giving of a bond, for the benefit of persons who might be injured by acts or omissions under the statute, as a condition precedent to such a license. This law in both its original title and language, covers a legitimate business for the bona fide purchase of wages or salaries', as well as businesses and pretended transactions which are merely camouflages for usurious loans and discount charges. There seems to have been no sub-sequent legislation affecting this manner of licensing and transaction of such a legitimate business and sales. While the act of 1920 (Ga. L. 1920, pp. 215-222; Park's Code, Supp. 1922, §§ 1770 [a]-[s]), by its title and language, regulates "the business of making loans in sums of $300, or less, * * * and * * * the assignment of wages or salaries, earned or to be earned, when taken as security for any such loan, " (italics ours), it has been held not to cover a bona fide assignment or sale. Tollison v. George, 153 Ga. 612 (1), 614, 112 S. E. 896; Atlanta Joint Terminals v. Walton Discount Co., 29 Ga. App. 225, 227, 114 S. E. 908. See, also, as to other legislation regulating rates of interest and discount, Ison Co. v....
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