State v. Wickenhoefer

• Decision Date: 16 June 1906
• Citation: 64 A. 273,22 Del. 120
• Court: Court of General Sessions of Delaware
• Parties: STATE v. ARTHUR L. WICKENHOEFER

64 A. 273

22 Del. 120

STATE v. ARTHUR L. WICKENHOEFER

Court of General Sessions of Delaware, New Castle County

June 16, 1906

Court of General Sessions, New Castle County, May Term, 1906.

INDICTMENT for charging illegal rate of interest, in violation of Chap 149, Vol. 23, Laws of Delaware (No. 47, February Term, 1906). Demurrer.

The demurrer is overruled.

Robert H. Richards, Attorney-General, and Daniel O. Hastings Deputy-Attorney General, for the State.

Philip L. Garrett, David J. Reinhardt and Herbert H. Ward for the defendant.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

PENNEWILL, J.

:--In this case the defendant has been indicted for the violation of an Act of the General Assembly of this State which imposes certain penalties upon all persons, firms and corporations except national and state banks and trust companies organized under the laws of this State, who shall make loans in sums not exceeding the sum of one hundred dollars at a rate of interest greater than six per cent. without having first procured from the Clerk of the Peace of New Castle County a certificate, and doing certain other things as provided by the Act.

This Act, being Chapter 149, Vol. 23, Laws of Delaware, 256, and entitled "An Act licensing Brokers or other persons to make small loans and charge interest in excess of the present legal rate," is in the following words:

"Whereas, there is within this State one or more persons or corporations engaged in the business of advancing loans of money and accepting as security chattel mortgages where the security is household goods or furniture, and in some cases accepting orders upon the firm or corporation where the borrower is employed, and

"Whereas, the charges imposed by said persons or corporations are in excess of the legal rate of interest in this State, affected by imaginary services rendered in the form of searches, attorneys fees, etc., therefore,

"Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

"Section 1. That after the approval of this Act the Clerk of the Peace of New Castle County shall grant certificates of Registration under his hand and the seal of his office to persons, firms or corporations, authorizing them to exercise the business of loaning money as hereinafter provided. Applicants for such certificates of registration shall upon receiving the same enter into a bond to the State of Delaware in the penal sum of One Thousand Dollars, with warrant for the confessing of judgment thereon, with waiver of all benefit of the exemption laws of any State in which judgment shall be recovered upon said bond, conditioned for the due observance of the provisions of this Act and to pay any fine or fines and costs imposed upon such obligor or obligors for the violation of the provisions of this Act.

"That persons, firms or corporations taking out such certificates of registration shall pay to the Clerk of the Peace for his own use an issuing and registration fee of Two Dollars.

"Section 2. That the Clerk of the Peace of New Castle County shall keep a record of all certificates of registration so granted by him which record shall contain the names and residences of the persons granted such certificate and if such a certificate shall be granted to a company or firm, the names of the individuals composing the same, and if a corporation the names of the President, Secretary and Treasurer of the said Corporation and their respective residences, and the said record shall be competent evidence in any Court where the fact of such registration may be in question.

"Section 3. That every person holding a certificate as aforesaid shall be entitled to make loans on personal property or otherwise not exceeding the sum of One Hundred Dollars and charge as interest in addition to the legal rate of interest an additional sum at the rate of five per centum per annum on the amount loaned, and no further interest, commission or charge shall be made.

"Section 4. Any person, firm, company or corporation making a loan and charging said additional interest or any interest, commission or charge in excess of six per centum, the legal rate of interest on any sum not exceeding One Hundred Dollars as aforesaid, shall give to the borrower a correct copy of any mortgage, bond, note or any instrument of writing by which said loan is evidenced or secured, and on failure or refusal to furnish on request of the borrower a copy of said mortgage, bond, note or other instrument of obligation evidencing or securing said loan shall be guilty of a misdemeanor, and on conviction thereof shall for each offense be fined a sum not less than Twenty nor more than One Hundred Dollars, or imprisoned for a term not exceeding one month or both in the discretion of the Court.

"Section 5. If any person or persons, firm, company or corporation, not first having taken out a certificate of registration as aforesaid, shall exact, require or demand, from any person or persons, a rate of interest upon sums of One Hundred Dollars or under in excess of six per centum per annum, whether the same is stated to be either interest or for services rendered or expenses incurred, or if any person or persons, firm, company or corporation having taken out a certificate of registration as aforesaid, shall exact, require or demand from any person or persons, interest upon sums of One Hundred Dollars or under in excess of the legal rate of interest as now provided by law in this State together with an additional sum at the rate of five per centum on the amount of loan per annum as hereinbefore provided, whether said additional sum be in the form of interest or for services rendered or expenses incurred, shall be guilty of a misdemeanor, and on conviction thereof shall be fined a sum not less than Twenty nor more than One Hundred Dollars for each offense, or imprisoned for a term not exceeding one month or both, in the discretion of the Court.

"Section 6. In case of the violation of any of the provisions of this Act by any firm, company or corporation, any member of said firms or company, and the President, Secretary or Treasurer, or any person or persons acting as agent or agents of the said firms, companies or corporations in the County of New Castle, may be proceeded against as principals and if found guilty of violating the provisions of this Act shall be punished in accordance with the provisions thereof.

"Section 7. It is expressly provided that nothing in this Act contained shall be construed to modify or repeal the usury laws of this State, or to authorize the loaning of money in sums of more than One Hundred Dollars by any person or persons, firm, company or corporation, at a greater rate of interest than that of six per centum per annum, but the said laws shall be and remain in full force and virtue and the penalties provided for the violation of the provisions of this Act, shall be in addition to the penalties provided by the said usury law.

"Section 8. This Act shall not apply to any national or State Bank or to any Trust Company organized under the laws of this State.

"Section 9. That all Laws or parts of Laws inconsistent herewith are hereby repealed and made null and void.

"Approved, March 29, A. D., 1905."

The indictment against the defendant is as follows:

"February Term, 1906.

New Castle County, ss.

"THE GRAND INQUEST FOR THE STATE OF DELAWARE, and the body of New Castle County, on their oath and affirmation respectively, do present, That Arthur L. Wickenhoefer, late of Wilmington Hundred, in the County aforesaid, on the thirty-first day of October in the year of our Lord, one thousand nine hundred and five with force and arms at Wilmington Hundred, in the county aforesaid, did exact, require, and demand from one George W. Skaggs, a rate of interest upon the sum of twenty-five dollars, in excess of six per centum per annum, to wit did exact, require, and demand, the payment of twelve dollars and twenty cents for the use of the said sum of twenty-five dollars for the period of eight months, he, the said Arthur L. Wickenhoefer being then and there acting as agent of Wilmington Loan Company, being a company doing business in the county and state aforesaid, and it, the said Wilmington Loan Company not having then and there a certificate of registration from the Clerk of the Peace of New Castle County aforesaid, authorizing it, the said Wilmington Loan Company, to exercise the business of loaning money as provided in Chapter 149, Vol. 23, Laws of Delaware; and it, the said Wilmington Loan Company not then and there being a National or State Bank or Trust Company within the meaning of Section 8, Chapter 149, Vol. 23, Laws of Delaware.

"Against the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the State.

"ROBERT H. RICHARDS, Attorney-General.

"DANIEL O. HASTINGS, Dep'y Att'y-Gen'l.

To this indictment the defendant has demurred, and it is upon such demurrer that the case is now before this Court.

The ten causes of demurrer filed by the defendant are in the following language:

"1. That Chapter 149, Vol. 23, Laws of Delaware, entitled 'An Act Licensing Brokers or other persons to make small loans and charge interest in excess of the present legal rate,' approved March 29, A. D. 1905, being the Act under which the indictment in said cause is framed and found, is, under the provisions of Section 1, Article 14, of the Amendments to the Constitution of this United States, unconstitutional and void.

"2. That said statute, being the Act under which the indictment in the said above cause is framed and found, is, under the provisions of Section 1, Article 14, of the...