*1 427 Harrison, Bolton, General, Arthur Hughel K. Attorney Ballard, Jr., General, John B. Assistant Attorney appellee.
Appendix.
Similar
by
cases considered
the court:
v.
Lingo
State,
(175
657);
State,
140
SE2d
v.
233
Morgan
Ga. 360
285);
(210
State,
SE2d
Gregg
659);
117
Ga.
SE2d
(210
State,
Floyd v.
810);
State,
Ga. 280
SE2d
Moore v.
(213
29643. HODGES et al. v. COMMUNITY LOAN &
INVESTMENT CORPORATION.
Jordan, Justice.
This court granted certiorari to review the two rulings by the Court of Hodges (210 this case. Community Loan &c. Corp., 133 Ga. App.
Community and Investment Corporation received, an action for brought money had and alleging 1,164.41 that it loaned to Reuben V. and Dorothy Hodges $ and that a principal balance of due on was $683.74 loan, on which interest of had accrued at the rate of $54.01 per 7% annum. The borrowers denied on the liability ground action was a contract predicated upon which null and void because its violated (Ga. Industrial Loan Act. 431-445; L. Code pp. 25-9). 25-3, Ann. Chapters A filed counterclaim was also lender failed to alleged which the borrowers by Federal requirements meet et seq. § 1601 Act. 15 USCA Truth-In-Lending dealt with The first question can recover Loan Act lender was whether an from a loan owing the balance of from a borrower terms void because its is null and *2 when Loan Act. of the Industrial violate the provisions effect on dealt with question The second the Federal limitation in the statute of counterclaims of Act. Truth-In-Lending consideration, opinion it is our
After further the second decided the issue on correctly Court of Appeals counterclaim effect that the borrower’s question of a further dis- necessity there is no barred and was question. cussion of this deal with the first
In we will opinion The Court of the Court of that, question Appeals. decided though even determined Appeals under null and void between the was parties Act, recover from the lender could Industrial Loan and loan, money as had due on principal borrowers at 7%. received, and interest thereon Act the Industrial Loan The penalty provision (Code who shall "Any person §Ann. is as follows: 25-3, Chapter under make loans Act, obtaining first without Georgia under oath or who make a false statement license shall thereunder, or who shall do for a license application an under such the license of such person business while revoked, shall or or who Chapter finally suspended for, collect contract receive knowingly charge, shall Chapter such permitted excess those loan contract Any as for a misdemeanor. punished void.” be null and Chapter made such shall (Emphasis supplied). stated that repeately
The Court of has of the Industrial Loan made contravention obligation In Loan &c. Corp. Act is void and unenforceable. Service (3) (154 McDaniel, 823), it was SE2d Ga. App. "If, however, on the trial that appear held: it should Loan] loan was in fact made under [Industrial plaintiff or plead prove a failure to there has been and no thereunder, is void obligation was licensed Colter v. See also: be had thereon.” recovery can (2) (157 SE2d Corp., App. Credit Consolidated Inc., Bolton, 124 App. v. Termplan, Lewis Assn. 473); Culverhouse v. Atlanta SE2d Persons, Inc., 27 Ga. App. Aged Convalescent SE2d Plan, Inc., 128 Ga.
In v. Commercial Credit Abrams in a 384), the Court of Appeals App. for a necessary not admittedly, which' was statement case, an action for suggested in that ruling lender violating be available to a might had and received Act recover the Industrial Loan the terms of due on the loan. Norman, Invest. Co. Georgia 740), concurring Mr. in a Ingram Justice Gunter) (in Mr. Justice joined by which he was opinion case, supra. in the Abrams developed suggestion of Mr. Ingram quoted Justice concurring in the case now under adopted by review. *3 the violation
The first reason for the view that given of the Loan Act would not cause the forfeiture 1920 Small amount loaned is that of the principal (Ga. 1933, 1920, 215, 219; § Code of Act L. pp. 25-313) of forfeiture of provided penalty specifically omitted from whereas this principal, provision statute, conclusion that leading of intended to omit the forfeiture as a for the violation of statute. penalty is, course, principle
It an established con- intent that where a statute is legislative struction of words, be amended it must by omitting presumed Miller v. Southwestern intentionally words were omitted. Co., R. to the penalty is not principle applicable Act. It is true that among
provision Act of the Industrial Loan the several statutes repealed 25-3 of the the Small Loan Act of 1920 (Chapter 1955 was new However, entirely 1955 Act was an Code of expressed different provisions, Act with completely language, different from the 1920 Act. § provided part:
Former Code 25-313 "If interest or charges permitted by Chapter in excess of those shall charged, received, contracted for or the contract of loan shall be null and void and the licensee shall have no any principal, to collect or receive interest or whatsoever.” penalty provision of the 1955 Industrial Act first
provided punishment for the ofviolations of the statute as provided: "Any misdemeanor, and then loan contract Chapter inmade violation of such shall be null and void.” amending substantially It is where an Act uses language, except the same for the omission of certain principle words, that the stated inMiller v. Southwestern supra, applicable. Co., R. is It is unreasonable Assembly repeals to hold that where the General a former completely legislation law, entirely and enacts new language, different that the omission of certain words which were the former Act should have any special significance determining legislative intent. Particularly is this true where the omitted words were surplusage in the former law. The Industrial Loan Act charges” also omits the words "interest or which were in persuaded the Small Loan but this has not the Court presume that the General did not intend these items to be forfeited. (Code
The declaration in the Industrial Loan Act any Ann. loan contract made in violation legal of the long Act is "null and void” effect, has a recognized by courts, which needs no further explanation. illegal It means that the contract is against public policy any money state, of the and that loaned under such a contract cannot be recovered. See Garrard, Dorsett v. Hanley Savannah Bank &c. 208 It violating fruitless to debate whether a contract the Industrial Loan Act is as evil as some other contract *4 engage illegal in an immoral or act. The General Assembly right against the has to declare what is void as public policy of the state.
Historically, regulating loaning the laws money charging changed many of interest have been and state laws of history For a colonial times. Bank Savings time of 1899 Union to the see Georgia up Dottenheim, SE &c. Co. (Code § statute usury
The present general only. for the forfeiture of interest provides specifically Assembly may that the General recognized This court has in laws. classes of lenders divergent deal with different v. Franklin Plan Cole that in one it is argued inequitable
It might such the lender the laws violating governing class of loans interest, whereas in another class only loans will lose its lender, for of the laws governing of loans the violation loans, interest, and principal, charges. those will forfeit to the wisdom of This is a matter that addresses itself court has no to substitute Assembly. General in for the of the General judgment judgment its the violation of to be for penalty regard Act. Industrial
There no that where the General logic holding declared that a loan contract made Assembly has void, means of the Industrial Loan Act is and other created the interest payment The contract requires contract are forfeited. much as it amount of the loan as just of the principal If the charges. and other interest requires payment void, then declares a contract in the language is void unless obligation specific entire recovery. statute allows partial is to the Court of Appeals effect of the the violation of for inconsequential penalty
impose that view the lender who Loan Act. Under to recover its principal, violates the Act is permitted was not what was surely interest thereon at 7%. This declaring language intended unequivocal to be null and made in violation of the statute contracts void. of Code the unambiguous language
We conclude that contract made §Ann. 25-9903 that a requires holding null void and Loan Act is violation of the Industrial a suit that no can be had of recovery had and received. All in part. reversed Judgment part affirmed *5 concur, J., Undercofler, Justices P. except Gunter and JJ., who dissent. Argued April 30, 1975 March Decided Rehearing May 20, denied 1975. Thomas, Webster, Antonio L. David A. M. Charles Baird, H. Winthrope Pettigrew, appellants. for Heuett, Alexander, Post, Hansell,
Schwall & Lee S. Tanner, Newton, Brandon Dorsey, & W. Rhett Trammell for appellee.
Hall, Justice, concurring. This case involves the law on "Moneylenders Pawnbrokers” and the construction statutes on enacted subject. "The small-loan acts the various jurisdictions were enacted to mitigate rather than eradicate the evils incident to the business of lending money in who, small amounts to those to having little offer as security their except future or earnings, used and worn articles of little value anyone to other than the borrowers, are unable to obtain funds readily. purpose of the acts is to afford the borrower the greatest practicable of protection, measure and since the acts are remedial in their nature to be they given are a liberal construction order to legislative effectuate the purpose. small-loan permitting to companies charge interest rate, excess of the normal commercial the legislature has upon borrowers, them duty fairly to deal and in making they loans must do so with scrupulous adherence to the terms of . . the statute . On the other hand, since in character, the statutes are penal and are intended to assist borrower by encouraging legitimate capital, the lender is to be protected un- against any reasonable extension statute, of the small-loan and a prohibition in the statute should be extended beyond not 615, 616, the fair of its import terms.” AmJur2d Moneylenders Pawnbrokers,
The appellee concedes that is void under however, Act; it contends it can nevertheless recover of the loan princi- the balance had and received. The answer is money an action pal found the nature of this action.
"While the action for money had and received is often (Butts v. County referred to 'equitable as an action’ Co., 149, 15 A. Jackson E. L. R. Banking Ga. S. (N.S.) 567, Barber, 244; Am. St. R. McCay 423, 424; Peck, 140), Whitehead v. it nevertheless an action at law (Brightwell Oglethorpe Telephone 166 S. E. and even though transaction out of which arises the an 'equitable action’ for had and received may give also rise to a *6 subrogation, the claimant may proceed upon his for a legal right of the recovery sums received by the defendant under such circumstances in and equity good conscience the it, defendant ought not to retain and ex et bono it aequo belongs to the claimant.” Jasper School v. Gormley, District 184 Ga.
General Assembly has provided pun misdemeanor ishment for those who violate the provisions of the In dustriar Loan Act. § Code Ann. 25-9903. It is axiomatic that one cannot in engage conduct which has been forbidden and declared criminal the by Assembly General and at the same time seek relief legal on the equitable theory bono,” of "ex aequo i.e., et injustice and fairness. is in principle well stated an opinion of the Supreme Court of the United "We States: do not see on what ground who in party, says his pleading which he seeks to recover was paid out for the accomplishment of a made purpose law, an offense by the and who testifies and insists to the end of his suit that the contract on which he advanced his money was illegal, criminal, void, and can recover it back in a court whose it duty is to give effect to the . Barber, law. .” White v. 123 U. S.
The "law on this question is not simply what judges of this Court think the law should be but what the it Assembly State, said is.” Burkett v. App. 177 Justice, dissenting.
In my opinion, the decision of the Court of Appeals is eminently correct. The majority opinion refuses to express plain of the message statutory change § made the General in Code Ann. language by 25-9903 in contrast to the found language § in Code Aim. old statute comparable provision 25-313.
I in the concurring dissent for the reasons given Norman, Invest. Co. v. opinion Georgia 740). It me that the General is clear to quite if intended the new statute that a loan is by law, forfeit all made in violation of the the lender shall any interest and other but not of the charges, sum advanced to the borrower. confront majority decision fails to my opinion, doctrine discussed applicable favor penalties
that the law does not forfeitures construed. We cannot a strict they strictly give must Ann. 25-9903 of Code language construction intended the conclude that reasonably legislature case. The majority majority reached this result effect of the of the opinion "[t]he also observes that in- is to impose [in case] Court of violation of consequential penalty to that conclusion is the Court of Loan Act.” One answer effect to the clear intention Appeals merely gave Still, it another is that will come as a shock quite statute. lenders, find themselves some technical who many of all earnings of the to learn loss their product (money) inconsequential. for the work of *7 I of economics and cannot agree defies law This view that it is correct. Justice Presiding
I authorized to state that am join and Justice Gunter this dissent. Undercofler MINIELLY. 29787. MINIELLY v. Justice. verdict and jury the wife from appeal by This is an in the Court of Gwinnett Superior decree final divorce trial on the husband’s amended The case went to County. from on the ground a divorce the wife seeking complaint on of cruel treatment the additional ground