Sullivan v. Siegal, 16690

• Decision Date: 12 May 1952
• Docket Number: No. 16690,16690
• Citation: 245 P.2d 860,125 Colo. 544
• Parties: SULLIVAN et al. v. SIEGAL.
• Court: Colorado Supreme Court

Page 860

245 P.2d 860

125 Colo. 544

SULLIVAN et al. v. SIEGAL.

No. 16690.

Supreme Court of Colorado, en Banc.

May 12, 1952.

Rehearing Denied June 23, 1952.

Max D. Melville, Edward E. Pringle, Thomas L. Ford, Denver, for plaintiffs in error.

Davis & Lutz, Creamer & Creamer, Denver, for defendant in error.

Louis A. Hellerstein, Denver, amicus curiae.

ALTER, Justice.

Thomas J. Sullivan and Marie E. Sullivan, plaintiffs in error, plaintiffs below, brought an action against S. I. Siegal, individually and doing business as Universal Investment Company, defendant in error, defendant below, to recover a judgment for $1,455.45 allegedly due them by reason of defendant collecting interest in excess of that allowable under the provisions of section 7, chapter 108, page 404, S.L.Colo. 1913.

Upon trial to the court, on motion of defendant the action was dismissed and judgment entered accordingly, to review which plaintiffs bring the cause here by writ of error.

It is alleged in the complaint that defendant is engaged in loaning money on security, and on December 1, 1949, plaintiffs borrowed and received from defendant the sum of $2,000, giving their note payable to defendant in the sum of $2,500, which note was payable at the rate of $80 or more per month until paid, with interest thereon at the rate of eight per cent per annum. As security for the payment of said note, plaintiffs gave, and defendant received, deeds of trust. The note was paid in full on April 25, 1950, and defendant demanded and plaintiffs paid, as interest on the sum of $2,000 actually received by them, interest amounting to $579.08, which sum was $485.15 in excess of interest allowable under the provisions of chapter 108, page 400, S.L.Colo.1913, which, it is alleged, is now, and at all times mentioned in the complaint was, in full force and effect.

It further is alleged that section 15, chapter 157, page 696, S.L.Colo.1935, which purportedly repealed chapter 108, S.L.Colo.1913, is invalid and unconstitutional with respect to loans on security in sums in excess of $300; that said section 15 violates the provisions of section 21, Article V of the Constitution of the State of Colorado. Further it is alleged that under the provisions of section 7, chapter 108, S.L.Colo.1913, plaintiff is entitled to recover three times the amount of the overcharge of interest from the person demanding and receiving the same, and that the action is brought within one year from the payment of the overcharge.

Defendant's motion to dismiss was upon the ground that the complaint fails to state a claim upon which relief can be granted.

The trial court granted defendant's motion to dismiss with prejudice and entered its findings, judgment and decree, the same being in part:

'Doth Find

'That Chapter 157 of the Session Laws of 1935 is entitled as follows:

"An Act relating to the making of loans or advancements of three hundred dollars or less; regulating the business of making such loans; providing for administration of this act and for penalties for the violation hereof and repealing all acts or parts of acts in conflict herewith.'

'Section 15 of said Chapter 157 reads as follows:

"Section 15. That Chapter 108 of the Session Laws of 1913, and Chapter 93 of the Session Laws of 1917, and all other acts and parts of acts in conflict herewith be and are hereby repealed.'

'The question before the Court is:

'Did the legislature by its action in passing Section 15 of Chapter 157 effectively repeal the 1913 law relating to loans, or was said section outside of and not germane to the title of the act?

'The Court further finds that after the passage of Chapter 157 Session Laws of 1935, the State Bank Commissioner heretofore charged under the 1913 law with the duty of regulating loan offices and enforcing the provisions of the 1913 law immediately ceased its functions and that no attempt to enforce said law has been made for a period of sixteen years.

'It is the opinion of the Court that Chapter 157 of the 1935 Session Laws is constitutional in all respects, including Section 15, that Section 15 is germane to and not outside of and is not repugnant to the general title of the act, and that the title of the act is broad enough to embrace the sub-sections, including Section 15.

'It is the opinion of the Court that the legislature intended to and did by its act repeal Chapter 108 of the Session Laws of 1913 and Chapter 93 of the Session Laws of 1917, and that it effectively did so, and could not have more clearly expressed its intention either in the title or in the body of the act.

'It is further the opinion of the Court that it is not the function of the courts to revive and to bring into being laws long since dead, particularly when all of the persons affected by the act, including all of those engaged in the business of making loans and all of the state officials charged with the regulation thereof, have acted on the enactment of the legislature and on the assumption that the legislature had effectively accomplished the purpose expressly found in the act.

'It is contended by the defendants herein that the failure of the compilers of the 1921 Compiled Laws or the 1935 Colorado Statutes Annotated to include the 1913 act likewise successfully repealed the 1913 act without reference to the Section 15 of Chapter 157 of the Session Laws of 1935. Because this was so strenuously contended the Court touches on the subject merely to state that we do not hold with that opinion, and that we do not believe that either the 1921 Compiled Laws or the 1935 Colorado Statutes Annotated were recodifications and reenactments of the laws contained therein.

'We do hold on other grounds that the 1935 act, properly known as 'The 1935 Money Lenders Act' is constitutional, and that the 1913 law was and is repealed.

'Accordingly, for the reasons above stated, it is the judgment and decree of the Court that the amended complaint be and it is hereby dismissed with prejudice.'

As we view the specifications of points, two in number, they present but one question: Are the provisions of chapter 108, S.L.1913, still in full force and effect so far as the same pertain to loans in excess of $300?

The title to the act, chapter 108, 1913 Session Laws of Colorado, reads: 'An act to regulate the business of loaning money on security of any kind by persons, firms, and corporations other than national banks, or any banks or bankers operating under state charters or under state supervision, or building and loan associations.'

Section 5 of said chapter 108 provides:

'That no person shall charge or receive a greater rate of interest upon any loan or upon any unpaid balance after any partial payment on any loan made by him than two per centum per month on the actual amount of the loan, and this charge shall cover all expenses, demands, and services of every character, including notarial and recording fees and charges, except upon the foreclosure of the security. * * *'

Section 7 of the chapter is as follows:

'Every person who, for any loan, or forebearance, shall have paid or delivered any greater sum or value than is above allowed to be received, may * * *, recover in an action in any court of competent jurisdiction against the person who shall have taken or received the same, * * * treble the amount of the money so paid or value delivered above the rate aforesaid, together with the costs of the suit to be fixed by the court, provided such action shall be brought within one year after the date of such payment or delivery.'

We note that chapter 108, S.L.Colo.1913, was held to be constitutional in Cavanaugh v. People, 61 Colo. 292, 157 P. 200.

A statute was enacted in 1917, S.L.'17, c. 93, p. 350, having to do with loans not exceeding $500 in amount, and we note that this statute was held void in Waddell v. Traylor, 99 Colo. 576, 64 P.2d 1273. We also note that the legislature enacted a statute, c. 159, p. 524, S.L.'19, having for its general subject the regulation of loans of $300 or less and expressly repealed chapter 108, Session Laws of Colorado 1913. The 1919 act, supra, we note was held to be unconstitutional in Gronert v. People, 95 Colo. 508, 37 P.2d 396. The 1917 act, supra, did not expressly repeal chapter 108, S.L.Colo.1913; however, by the provisions of section 20 of the 1919 act such an attempt was made. Both the 1917 act, supra, and the 1919 act, supra, having been held to be unconstitutional and therefore void, any attempt, either by express provision or by implication, to repeal chapter 108, S.L.Colo.1913 failed. Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757.

In Waddell v. Traylor, supra [99 Colo. 576, 64 P.2d 1274], our court said:

'After the date of the execution of the note this court, in the case of Gronert v. People, 98 Colo. 508, 37 P.2d 396, held the Money Lenders Act (Session Laws of 1919, c. 159, p. 524, sections 3781-3801, C.L.1921) to be unconstitutional. The 1919 act in express terms repealed chapter 108, Session Laws of 1913, and chapter 93, Session Laws of 1917, supra. Defendants contend that the attempted repeal of these laws by the act of 1919, which act was held unconstitutional in the Gronert Case, was ineffectual, and that our opinion left the acts of 1913 and 1917 standing as the law of this state. Plaintiff does not challenge the correctness of this contention. The two acts finally were repealed by chapter 157, Session Laws of 1935 (690), which became effective before the complaint in this action was filed.' (Italics ours.)

As we construe the opinion in Waddell v. Traylor, supra, is was there held that the plaintiff might proceed under the provisions of chapter 108, 1913 Session Laws of Colorado.

We have examined the record in Waddell v. Traylor, supra, and it appears that the constitutionality of the 1935 act was not in issue. Under that decision, its constitutionality was not involved or even questioned; therefore, we conclude that chapter 108,...