39 S.W. 285 | Tex. | 1897
In this cause the Court of Civil Appeals have certified to this court the following question: "Whether, in a suit against a National bank to recover the penalty provided for in the Federal statute for receiving usurious interest, the measure of recovery is double the whole interest received, or only double the excess above what might have been lawfully contracted for and received?"
Section 5198 of the Revised Statutes of the United States, in reference to National banks provides: "The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the *444 association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred."
In Crocker v. Nat'l Bank, 1 Nat'l Bank Cas., 317, 4 Dill, 358, decided in 1876, Dillon, Circuit Judge, in passing upon this question, said: "The next question is, whether the recovery shall be for double the whole amount of interest paid, or only double the amount in excess of the legal rate, whether that be seven or twelve per cent? Where an illegal rate of interest is charged, and an action is brought on the contract, the statute declares a 'forfeiture of the entire interest,' and if the usurious interest has been paid, the statute gives an action to recover back, not simply the excess over the legal rate, but 'twice the amount of interest thus paid,' that is, paid in pursuance of an usurious contract or transaction. National banks owe a duty to the public to observe the limitations of the Act of Congress in respect of the rate of interest; limitations wisely imposed, but in many of the western States, at least, very frequently disregarded. They have privileges enough, without usurping others. They have powers enough, without exercising those not conferred, or transcending the limits of their charters. They ought not to become usurers; and if they do, public policy is promoted by an enforcement of the penalties which the statute has denounced. It should be borne in mind that the statute confirms the action to the person who has paid the illegal interest, or to his legal representatives, thus showing that it was in part its purpose to repair this loss or reimburse his estate — there being superadded the further purpose of preventing such violations of the law, the infliction of a penalty of twice the amount of interest paid. This penalty was doubtless, supposed by Congress to be no more than would be reasonably sufficient to cover the excess of interest over the legal rate, and costs and expenses of litigation, and at the same time make it more profitable to the banks to obey the law than to violate it. Judgment will be entered for the plaintiff for $2219.92, that being twice the full amount of interest paid on the usurious transactions set out in the petition, not barred." The same ruling was made by Gresham, J., Drummond, Circuit Judge, concurring, in Bank v. Davis, 1 Nat. Bank Cas., 350, decided in 1877, and by Wheeler, J., Second Circuit (Vermont), in Hill v. The Bank, 15 Fed. Rep., 432, decided in 1883. We know of no decision by the Supreme Court of the United States directly in point. In Bank v. Dearing,
We will now notice the two cases holding a contrary doctrine. In 1872, in Bank v. Lamb,
We are of opinion that the plain language of the statute permits of no other construction than that placed upon it in the opinion of Judge Dillon, supra, and therefore, in answer to the question propounded, we hold that "the measure of recovery is double the whole interest received."