Willis v. Buchman , 240 Ala. 386 ( 1940 )

The writer is of opinion that the Court of Appeals has promulgated a sound opinion on the law of usury, has entered such judgment as the statute authorized, and the opinion and judgment should not be disturbed here on certiorari. That it was within the province of that court to determine, as a fact, that the question presented was of such public interest as justified a re-examination of a former decision of the court being used by a usurious moneylender to carry on his unlawful scheme originating in New York and Memphis, and spreading out through the States, like the tentacles of an octopus, fastening on to the flesh of the necessitous, ignorant and poor, sucking from them their life blood to enrich this violator of the law.

The holding of the majority, whether so intended or not, has the effect to destroy the appellant's statutory right of appeal after it had been perfected, by allowing the appellee, we assume, to write on the face of the judgment that it has been or is cancelled, though in fact it was not satisfied — an act not invited by appellant, and which he has resisted to the present moment. It also undermines and wholly destroys the sound discretion vested in the Court of Appeals to consider the case on its merits and administer justice in the light of facts existing when the controversy arose. McMinn v. Karter, 123 Ala. 502,26 So. 649; Empire Coal Co. v. Bowen, 195 Ala. 348,70 So. 283.

No case has been cited, and after search I have found none, that holds, the adverse party by his own act and for the sole purpose of preventing the court from considering the merits, can render the questions moot. The authorities are to the contrary — the questions must become moot "without any faultof the appellee or defendant in error." 3 Am.Jur. 209, § 733; Fisher v. Baker, 203 U.S. 174, 27 S. Ct. 135, 51 L. Ed. 142, 7 Ann.Cas. 1018; Lake Erie W. R. Co. v. Huffman, 177 Ind. 126,97 N.E. 434, Ann.Cas. 1941C, 1272. [Italics supplied.]

There is no question of "collateral right of the parties" mentioned in one of the stated exceptions of the majority. The rights here were direct and immediate, the question of liability on a usurious contract, a contract, condemned by the statute. Code 1923, § 8567; McCormick v. Fallier et al.,223 Ala. 80, 134 So. 471; First Nat. Bank of Opp v. Cotton,231 Ala. 288, 164 So. 371.

In the last case cited, supra, it was observed: "Usury laws are for the protection of the borrower against the cupidity ofthe lender. The borrower may not be able to figure the amount of lawful interest included in the face of the paper maturing at a future date, or he may confide in the banker [lender] to make the calculation." 231 Ala. page 292, 164 So. page 374. [Italics supplied.]

But it is argued that there is no difference between legitimate contracts and usurious contracts in so far as the rule under consideration is concerned. It is enough to say that the right to make legitimate contracts is one of the liberties preserved by the Constitution. City of Mobile v. Rouse,233 Ala. 622, 173 So. 266, 111 A.L.R. 349.

Usurious contracts, on the other hand, are as a matter of public policy condemned as "tainted with an evil and wrongful intent," Barclift v. Fields, 145 Ala. 264, 41 So. 84, 85, and as "offensive to the policy and positive mandate of the law." Hawkins v. Pearson, 96 Ala. 369, 11 So. 304; McCormick v. Fallier et al., supra. [Italics supplied.]

The exception to the rule dealt with by the Court of Appeals, and now under consideration here, is, where the question involved is a matter of public interest, the appeal will not be dismissed if the intervening event is brought about by the act of the adverse party, or, we add, designedly for the purpose of preventing a re-examination of the question by the court to which the appeal is taken, to correct misleading tendencies in a former opinion of that court which is being used by the appellee to perpetuate the evil and wrongful practice, offensive to the policy and positive mandate of the law. See 4 Corpus Juris Secundum, Appeal and Error, p. 1969, § 1362; Graff v. Tacoma, 61 Wash. 186, 112 P. 250.

The voluntary act of the appellee in entering a cancellation on the face of the judgment record, without consideration, after the appellant had perfected his appeal, is an admission by the appellee that his claim was founded on a usurious contract, and was an act of "prudence" to prevent the re-examination by the Court of Appeals, in the light of the facts. Litigants, as a usual rule, do not withdraw just claims founded on valid, enforcible contracts, because they have to incur attorneys' fees to enforce them, and especially where the note, the foundation of the suit, provides that all costs shall be taxed against the payor.

Shylock, the loan shark, portrayed in the Merchant of Venice, also withdrew his claim and left the court when "the most just Judge — a Daniel come to judgment" in the person of Portia — ruled:

"This bond doth give thee here no jot of blood, — The words expressly are, a pound of flesh: Take then thy bond, take thou thy pound of flesh; But, in the cutting it, if thou dost shed One drop of Christian blood, thy lands and goods Are, by the laws of Venice, confiscate Unto the state of Venice."

2 Shakespeare, p. 405, Beaux Arts Edition.

The public policy declared by the statute against usury is supported by Divine Authority, Exodus, Ch. 22, V. 25, and a historical background running through all civilization. We quote from 66 C.J. p. 142, § 5: "It seems that the taking of interest for the loan of money, or at least taking excessive interest, has been regarded with abhorrence from the earliest times. We are told that such usury was prohibited by the early laws of the Chinese and Hindus, and by the Koran. The Mosaic law prohibited the Jews from exacting interest on loans to their brethren, but permitted interest to be taken from Gentiles. Among the Athenians moderate interest charges were allowed, but custom fixed the maximum rate at twelve per cent, and anyone exacting a higher rate was looked on with contempt as being vile and ignominious. Among the Romans interest charges were limited by the Twelve Tables, and subsequently totally abolished. Commercial necessity revived the practice of making loans at interest, which were, however, strictly regulated by later legislation. During the Middle Ages the people of England and especially the English church entertained the opinion then current in Europe that the taking of any interest for the loan of money was a detestable vice, hateful to man and contrary to the laws of God. It is said that not only was the usurer liable during his life to the censures of the church, but after his death his chattels were forfeited to the king, and his lands escheated to the lord of the fee. Contracts for interest not exceeding ten per cent were expressly legalized by act of parliament in 1545; but it was also provided that a contract for a loan at a rate of interest in excess of ten per cent should be wholly void both as to principal and interest. This act was repealed in 1555, but restored in 1570. Subsequent acts gradually reduced the rate of interest allowed until 1714 when by statute the lawful rate was fixed at five per cent, where it remained until 1854, when all restrictions on interest charges were removed. The early colonial usury acts were modeled after the English act, the rate of interest allowed being usually higher, however. These early enactments, as would be expected, adopted the penalty for usury fixed by the statute of the mother country, and made all usurious contracts wholly void. The tendency of subsequent statutes, however, has been steadily to mitigate the punishment inflicted on the usurer, who now, in most of the American jurisdictions, is required to forfeit only the usurious interest, either wholly, or as to the illegal excess, although it appears to have been thought in the early times that no action could be maintained on any contract to pay interest, since such contracts were unlawful and void. There is not wanting authority for the statement that contracts for reasonable interest were valid at common law."

The systematic violation of such public policy, and the positive mandate of the law enacted for the protection of the necessitous, poor and ignorant, is clearly such "matter of public interest," as justified a consideration of the case on its merits. The writ of certiorari should therefore be denied.