Juhan v. State , 86 Tex. Crim. 63 ( 1918 )

The original opinion in this case is devoted mainly to a discussion and decision of the question as to whether the business of appellant is such as is properly within the regulatory control of the State, in the exercise of its police power. We have no doubt that the business of the appellant is one whose regulation is within the police power of the State, and that reasonable restriction thereof may be provided by the Legislature; but under our Constitution such restriction may not be such as to make it impossible to conduct a legitimate business, or to arbitrarily deprive a citizen engaged in such business, of his right to that equal protection under our laws which is guaranteed by our Bill of Rights, nor take from him his right to the due course and process of law, which is also guaranteed him by our Constitution.

Giving particular attention to the language and requirements of Chapter 28, Acts of the Regular Session of the Thirty-fourth Legislature, which contains the law on this subject, we concede that the requirement of a bond as a prerequisite to engaging in business as a loan broker, is proper, provided the amount and conditions of such bond be not improper. Nor would it be unreasonable for such a law to require an artificial person, such as a coporation, to appoint an agent or attorney-in-fact, upon whom service of legal process may be had, though we are unaware of any law in this State making such provision in the case of a domestic corporation, in case of any other corporation than that described in this Act. In our opinion, however, to single out the loan broker, and to define him as one who lends money upon personal securities, who takes assignments of wages, and chattel mortgages upon houshold goods, and to then require him to give a bond for $5000, made renewable every year, and conditioned that he will faithfully comply with each and every requirment of the law governing such business, and pay any judgment which may be obtained against him, as is provided in Sections 2 and 3 of the Act under consideration; and then to further write in Section 7 of said Act, as a part of "The law governing such business," that such private citizen shall file with the county clerk of each county where he does business, a written, irrevocable power of attorney, naming the county judge of such county as his duly authorized agent, and attorney-in-fact, for the purpose of accepting service for him or it, or being served with citation in any suit brought against him or it, in any court of this State, "and consenting that the service of any civilprocess upon such county judge as his or its attorney for suchpurpose in any suit or proceeding, shall be taken and held to bevalid, waiving all claim and right to object to such service, orto any error by reason of such service," is to attempt to place such obligation in said bond as to make it unreasonable and discriminatory. No citzen of this State can be compelled to relinquish or waive his right to his day in court as a condition to engaging in any lawful business. Nor will a law requiring a bond seeking to impose such condition, be upheld by us. We are not surprised that the bonding companies and solvent citizens, as is disclosed by this record, refused to make for appellant the bond required by this Act. Under its conditions, and the terms of this law, the county judge might accept service, or be served with citation, in a suit against appellant in the most remote county in the State, and in a lawsuit wholly foreign to the loan-brokerage business, and in such case, even without knowledge on the part of appellant of said suit, or service, or accepted service, a judgment might be rendered against him and his bondsmen for any amount, and even though the service be defective, erroneous, and illegal, appellant and his sureties would be powerless, for by the express provisions of the law, such written appointment of the county judge as his attorney-in-fact, must contain appellant's consent to such service, and his waiver of any right to object to any error therein. Notwithstanding the fact that as to the ordinary citizen, erroneous and defective service renders the judgment either void or voidable, as the case may appear, for some reason effort is here made to take from the man engaged in the business of loan broker such right, and he is thus penalized and denied the right of equal protection of the law, and deprived of his property and privileges without due course of law. There is no provision in this law requiring the county judge to notify, or in any other way acquaint the loan broker with the fact that he has accepted service or been served with citation in any suit against him, which fact may result from the consideration that it would do the loan broker no good, inasmuch as he could not take any steps to release himself by reason of any defect in the citation. It might be very questionable, if necessary to a decision of this case, as to whether the county judge could in any event be compelled to act as such agent or attorney-in-fact, or put himself to any trouble by reason thereof, or take any action with regard thereto. Such function is nowhere prescribed in our Constitution and laws as a part of the duty of the county judge. This, however, is aside from the decision of the questions involved.

Not only do the conditions of the law above mentioned appear unreasonable and discriminatory, but it is further provided in Section 9 of said Act, that any judgment obtained against a loan broker under the articles of this Act, or under the laws ofTexas, shall be collectible out of the bond provided for.

It thus appears that the bond and sureties would not only be held for the acts of appellant while actually engaged in the line of his business as a loan broker, but also for any other sum for which he might be liable under the laws of this State.

It does not appear to us to be necessary to discuss this act any further. There is grave doubt in our minds as to whether or not the individual citizen of this State, who is given the right under reasonable and wise provisions of law, to be served with citation, and thereby have knowledge brought home to him of a pending suit in this State, can be compelled, if he engage in a particular line of business, to relinquish that right of personal service. We know of no law or authority in this State holding that he may be.

We are not permitted to concern ourselves with the question as to whether the loan broker is necessary and useful in a community, to meet the wants of those who lack ability to measure up to the financial standing required by the bankers, nor as to whether the loan shark is an evil that should be effectively banished from our midst. Evils must be met and abolished or minimized, according to the wisdom of our Legislature, but within the limits fixed by our Constitution.

Believing that those provisions of this law which fix the conditions of the bond, and require a waiver of the loan broker's right to object to defective service, and permit the payment of other judgments out of the bond, deny a citizen equal protection, and seek to deprive him of his property and privileges without due course of law, we hold said Act in violation of our Constitution. The case of ex parte Hutsell, 78 Tex. Crim. 589, holding this law constitutional, is hereby overruled.

The motion for rehearing is granted, and the cause is reversed and ordered dismissed.

Reversed and dismissed.