193 Mo. 16 | Mo. | 1906
— This is an original proceeding by habeas corpus for the release of the petitioner on the ground that section 2358, Revised Statutes 1899, is unconstitutional, and his arrest for violation thereof, therefore, is without any legal authority or justification.
The petitioner was arrested by the constable of Central township, St. Louis county, under and by virtue of a warrant issued by I. W. Campbell, a justice of the peace within and for said township, upon an information filed before said justice of the peace by the prosecuting attorney of said county on the 11th of September, 1905, and was in the custody of said constable at the time the application for this writ was made and issued, and is now under bail awaiting the action of this court upon his application. The information upon which he was arrested charges that the petitioner on the 22nd day of August, 1905, in said St. Louis county, did then and there receive from one Frank T. Henry, interest at a greater rate then two per cent per month, for the use of one hundred dollars, loaned by the petitioner to said Henry on the 19th of July, 1905, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.
Section 2358, Revised Statutes 1899, is in these words:
“Sec. 2358. Receiving greater mterest than two per cent per month, etc. — misdemeanor, when — penalty. —Every person or persons, company, corporation or firm . . . who shall take or receive, directly or indirectly, by means of commissions or brokerage charges, or otherwise, for the forebearance or use of money or other commodities, any interest at a rate greater than*25 two per cent per month, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in. the county jail for a period of not less than thirty days nor more than ninety days. ' Nothing herein contained shall be construed as authorizing a higher rate of interest than is now provided by law.” ■
The constitutionality of this section is challenged on four grounds: -First, that it is in violation of section 1 of article 14 of the amendments of the Constitution of the United States which prohibits any State from depriving “any person of life, liberty or property without due process of law. ’ ’ Second, because it violates section 30 of article 2 of the Constitution of the State of Missouri which provides “that no person shall be deprived of life, liberty or property without due process of law. ’ ’ Third, because it is a violation of that portion of section 1 of article 14, of the amendments to the Constitution of the United States which prohibits “any State from denying to any person within its jurisdiction the equal protection of the laws.” Fourth, because it violates section 53 of article 4 of the Constitution of the State of Missouri which prohibits the Legislature from “passing any special law granting to any corporation, assocation or individual any special-or exclusive right, privilege or immunity.”
I. Prior to the enactment of section 2358 on the 14th of April, 1899, the taking of usurious interest had never been declared a criminal offense by the General Assembly of the State of Missouri, and it is now earnestly insisted by learned counsel for petitioner that this section is unconstitutional, because it is not within the power of the Legislature to make usury a crime and punish it as such.
This is a far-reaching proposition. The Constitution of this State ordains that the legislative power,’subject to the limitations therein contained, shall be vested
With much industry the learned counsel for the petitioner has collated a long line of decisions in this State to the effect that usurious contracts are not void, but voidable, and that courts will not enforce contracts which are contrary to our laws or public policy. These two propositions do not require the citation of any authorities, but they have little or no bearing upon the question raised here, to-wit, that the Legislature has po power to declare the taking of usurious interest a criminal offense. It may be conceded that at common law usury was not an indictable ofifense, yet it is a fact that various acts of the British Parliament made usury a crime and the states of Indiana, Massachusetts, New Hampshire, New York, South Dakota and Tennessee all have statutes making the taking of usurious interest a misdemeanor, and in none of these states have we been able to find that the constitutionality of such legislation has ever been denied. The State, through its Legislature, may enact any law that is designed to suppress or punish a wrong, to mitigate an evil, prevent extortion or oppression. Obviously it is no objection to a criminal statute that the crime denounced was not one indictable at common law, or that it should have been prohibited specifically by some prior statute. If such were the case, then there could be no legislation on the subject of crime, however urgent and flagrant the offense had become in the various changes of society. Dr. Wharton in his Criminal Law (10 Ed.), see 14a, says: “It has been often said that at common law indictability and
In Kreibohm v. Yancey, 154 Mo. l. c. 83, section 3710, Revised Statutes 1899, was challenged on the ground that it was in conflict with the fourteenth amendment of the Constitution of the United States, and sections 4 and 30 of article 2, and section 33 of article 4, of the Constitution of Missouri. Responding to that contention, this court, through Brags, J., said: “The main argument in support of this contention impugns the constitutionality of usury laws generally, on the ground that such laws are in restraint of the right of contract, and are not a legitimate exercise of the police power. It would serve no good purpose to review this argument at length. The power to regulate the rate of interest has been exercised by every civilized nation, ancient or modern, whose laws survive in history. [Dunham v. Gould, 16 Johnson 367.] In Anglo-Saxon civilization, laws against usury have always been in force. By the Canon law interest and usury were synonymous terms, and it was unlawful to take any money for the use of money, and this law was rigidly enforced by the temporal authorities of Ehgland until the reign of Henry VIII., when the legal right to take interest was first created by act of Parliament (37 Henry VIII., cap. 9), and ever since in England and in this country, this right has existed in legal contemplation as the creature of statutory enactment. As was said by Mr. Justice Field in Munn v. Illinois, 94 U. S. l. c. 153, ‘ The practice of regulating by legislation the interest receivable for the use of money, when considered with reference to its origin, is only an assertion of right of the government to control the extent to which a privilege granted by it may be exercised and enjoyed. ’ It was in this light that the right was regarded in the
The taking of interest, then, beyond a legal rate is granted to no person in this State, and the act now before us simply makes the unlawful act of taking interest in excess of two per cent per month a misdemeanor. Laws against usury are founded on principles of public policy, principles that have for ages been recognized, and this act seeks only to punish that which has for many ages been considered unlawful in itself. The right'to regulate interest by legislative enactment being one conceded to be within the power of the Legislature, that body can regulate or prohibit it altogether. And if previous legislation on this subject punishing the infractions of usury laws by forfeitures of the .interest have proved ineffectual to check the evil, it was perfectly competent for the Legislature to adopt more drastic measures and make it criminal. If the Legislature had the power to say what rate of interest in its own opinion'transcended a fair and just remuneration for the loan of money or property, it was competent to make any excess over such rate a misdemeanor. In our opinion it would have been perfectly competent for the
It would subserve no good purpose to review all the various distinctions of crime given by the various courts or text-writers from time to time. Under our system of government the people through their Legislatures have the power to define or punish crimes when not restrained by the organic law of the State or the Federal government. It is sometimes announced by some of the courts and some of the ablest law-writers of this country, that no act of the Legislature can be declared void unless it contravenes some specific section or provision of the State or Federal Constitution; on the other hand, it has been held that there are limits beyond which legislation cannot rightfully go, even though the courts may not be able to point to a positive prohibition against it in the Constitution, but this case does not call for any discussion.of that power, holding as we do that it is within the power of the Legislature to fix a maximum rate of interest for the use of money, and we have no doubt of the power of the Legislature to enforce obedience to such a law, whether by forfeitures of the interest or the principal, or by making it a misdemeanor punishable as a crime, and certainly there is nothing in the particular act before us which requires any vindication of the moderation of the Legislature in making the receiving of interest beyond two per cent per month a misdemeanor.
HI. But it is further insisted that the act by its very terms excludes all usurious interest except such as is taken “by means of commissions or brokerage charges,” and when thus read is clearly unconstitutional, because the equal protection of the law is not granted to. all persons by this act, because it attempts another arbitrary distinction, in this, that its provisions are plainly leveled only at that class of usurers who charge more than two per cent per month directly or indirectly, “by means of commissions or brokerage charges or otherwise,” thus excluding all other classes who receive or agree to receive such usury directly or by any other
It results that in our opinion the law assailed in this case is a perfectly constitutional enactment and that the petitioner was in lawful custody at the time of his application to this court for a writ of habeas corpus, and it is therefore ordered that the prisoner be and he is