Ex Parte Hutsell , 78 Tex. Crim. 589 ( 1915 )

Relator has filed a motion for rehearing in this cause, and a very able argument in support of it. It has been pending for some time, and we have during that time given the propositions most careful thought and study, and we are frank to say that the one first presented was not to us entirely free from difficulty, but after reading the decisions of the various States of the Union, and the decisions of the Supreme Court of the United States, we have come to the conclusion that when a citizen, like a corporation, comes to the government and asks a privilege or license to engage in any given character of business that is subject to police power of the State, the State has a right to annex to the privilege or license in granting it any reasonable regulation it deems necessary to attain the purpose and object of the law. One of the purposes and objects of this law is to prevent those who are engaged in the business or occupation of lending money on household goods, or upon assignment of wages of wage earners, to charge a greater rate of interest on such loan than that authorized by law, and if they do, to provide a ready means whereby the penalty prescribed by law may be readily enforced.

Relator speaks feelingly of the man who has nothing but his wages, or household goods to give as security for a loan, and that it is not right to deprive him of the privilege of mortgaging such property if necessity requires or he desires to do so. With the wisdom of the law this court has not and can not sit in judgment. This power is not confided to us, but the sole question we have to pass on is, is the law violative of any provision of the Federal or State Constitution? Texas was the pioneer State in exempting the homestead from execution and forced sale, and at the same time provided in the Constitution that no mortgage lien could be created thereon, even with the consent of the wife. If such provisions of law were violative of the Federal Constitution, then this clause of our State Constitution would be void, but not so; it has been sustained in all the courts of the land where the question was raised. And if the people had the authority and power to place that provision in the Constitution, then they, acting through their chosen representatives, have the same power to so enact in regard to other species of property whenever they deem the public welfare demands it, if there is no inhibition in the State Constitution. It is the people of the State so enacting, and if the law is unwise and it works unnecessary hardships on the poor and friendless, we have that faith in the ultimate judgment of the citizenship of the State that it will not long remain the law. But be that as it may, it is not a question of whether or not the law is wise or unwise — all we can do is to see whether or not it intrenches upon any right reserved to the citizenship as a whole or any individual citizen, and we shall discuss the law from that standpoint, and that alone, and will not diverge into other fields.

The first contention of relator is, that we erred in holding that the State, had the authority and power to provide, as condition prerequisite to issuing one a license to engage in this business, that the licensee shall file a power of attorney, appointing the county judge of the county, in which such license is sought to be obtained, his agent upon whom service of citation may be had, for any suit growing out of the loan brokerage business as defined by this law. And we will say, that relator desires us to correct the impression, if such was made by the original opinion, that he contended that the law was void by reason of it selecting the county judge as such agent to be appointed. Relator concedes that if the Legislature had the authority to require the selection of an agent upon whom process might be had, the law could select the county judge. His contention is that no authority existed to require the naming of an agent for the purpose named, and he ably presents this question. One of the most and oftenest quoted opinions on this subject is that of Pennoyer v. Neff, 95 U.S. 714, 24 Law Ed., 565, and in that opinion the Supreme Court of the United States says:

"Neither do we mean to assert that a State may not require a nonresident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the State to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some prescribed way, and that judgment rendered upon such service may not be binding upon the non-residents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch., 289, `It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.' See also Ins. Co. v. French (supra) and Gillespie v. Ins. Co., 12 Gray., 201. Nor do we doubt that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions would hold their interest subject to the conditions prescribed by law. Copin v. Adamson, L.R., 9 Ex., 345."

And in Wilson v. Seligman, 144 U.S. 41, 36 Law. Ed., 338, the Supreme Court of the United States holds:

"It may be admitted that any State by its laws may require, as a condition precedent to the right of a corporation to be organized, or to transact business, within its territory, that it shall appoint an agent there on whom process may be served; or even that every stockholder in the corporation shall appoint an agent upon whom, or designate a domicile at which, service may be made within the State, and that, upon his failure to make such appointment or designation, the service may be made upon a certain public officer, and that judgment rendered against the corporation after such service shall bind the stockholders, whether within or without the State. In such cases the service is held binding because the corporation, or the stockholders, or both, as the case may be, must be taken to have consented that such service within the State shall be sufficient and binding; and no individual is bound by the proceedings who is not a stockholder. Lafayette Ins. Co. v. French, 59 U.S. 404, 18 How., 404 (15 Law. Ed., 451); Ex parte Schollenberger, 96 U.S. 369 (24 Law. Ed., 853); Pennoyer v. Neff, 95 U.S. 714, 735 (24 Law. Ed., 565, 573); Vallee v. Dumergue, 4 Exch., 290, 303; Copin v. Adamson, L.R., 9 Exch., 345, 355, 356, and L.R., 1 Exch., div. 17."

It is thus seen that the United States Supreme Court holds that such provisions of law may be applicable to an individual as well as to corporations who seek a privilege or license from a State. If the loan brokerage, as defined, was not of a character of business the State had the right to regulate and control, a different question would be presented, but inasmuch as it is such a business, the State has the right to prescribe that no one engaged in it shall charge a greater rate of interest than that authorized by the laws of the State, and prescribe means to prevent one from charging such excess rate, and if they do, to provide means whereby the penalties prescribed by law may be enforced, then the State has the right to prescribe as a prerequisite to issuing one license to engage in such business that he shall name an agent upon whom service can be had when the penalties fixed by the law of the State are sought to be enforced, if the laws pertaining to such business are violated by the person to whom license is issued.

Relator contends that even if the State had the right to require that an agent be designated upon whom service could be had, in case he violated the law, the State had no right to require that he give a $5000 bond, "conditioned that he will faithfully comply with each and every requirement of the law governing the loan brokerage business, as defined, and will pay to any person dealing with such loan broker any judgment that may be obtained against him." That bond in such sum is prohibitive, and without proof we ought to take judicial notice that no person can give bond in such sum. The writer feels that the courts have no judicial knowledge on this question, and if we had personal knowledge we would not be authorized to take into consideration in passing on this question. We do not know the volume of business done by those engaged in the loan brokerage business, nor the profits arising from such business. We do not know whether this bond is excessive or not. We do know it is in no greater amount than the bond required of retail dealers in spirituous liquors, and that bond is conditioned, as is this one, — that the licensee will obey the law governing such business, and will pay penalties to any person suffering by reason of the licensee not observing the law governing his business. And such law has been upheld by our courts in numerous instances. We do know that retail dealers readily give such bonds, and it seems to us that if they can do so, with the environments thrown about them, then certainly a loan broker under this statute can do so, if he has so lived as to have the reputation of being a law-abiding citizen, and if not, this law or any other law does not contemplate the licensing of any person to engage in any character of business who is a criminal, or continuous violator of the laws of this State. Such laws are in force in many States, not only with reference to liquor dealers, but also in reference to persons engaged in the business of pawnbroker, and they have uniformly been upheld in the various States of the Union. We all know that bonds of this character are to a large extent now made by indemnity or surety companies, and in this record there is no evidence of what their fees would be for becoming surety on such bond, and no evidence that the average profits on business of this character would not justify the paying of such fees. Then it authorizes the giving of a personal bond.

The contention of relator "that the bond given shall by its terms and recitals provide that it shall continue and remain in force and effect so long as such loan broker continues to do business in this State — that it is like a mighty river, going on forever," is not sustained by the statute in question. It provides that a new bond shall be given annually, so that the bond given in any one year will be held to be responsible only for violations of the law and penalties incurred during the year in which it was given to cover alone, and by provisions of law it expires at the end of the year, and is liable for no transactions occurring after that time. We have provisions fixing the time in which suits may be brought upon this bond, as we have in case of the liquor dealer and pawnbroker bonds, and its provisions are no more onerous than are the bonds in those instances.

It is contended the law is void, because it levies no penalty for its violation. If that was the correct construction of the law we are satisfied relator would not take the time nor trouble to contest its validity. Our laws provide if one lending money shall charge and collect a greater rate of interest than that fixed by law, he may be required to pay back double the interest so collected. This is the penalty prescribed by law, and for which the bond given will be liable, and it is because of this penalty and liability relator contends the bond will be so difficult to give. We must always view laws dealing with a given subject in their entirety, and not take one separate provision and construe it alone. (Lewis' Sutherland Statutory Construction, secs. 443 to 449.) But in addition to this in section 10 a specific penalty is assessed against all persons who engage in the occupation licensed without first taking out a license under the law.

It is also contended that the law is discriminatory in that it does not bear equally on all who may engage in this character of occupation. We think relator is wrong in seeking to place such construction on the law. He admits that the Act in question, in and of itself, does not do so, but his contention is that other provisions of law necessarily so result. If the law does not bear equally on all who engage in the given occupation, we would readily concede that it is invalid, but the illustrations cited by relator do not bear out his contention. It should be remembered that it is a given occupation that is taxed, pursuing a certain line of business, and we think all who pursue that occupation will be liable for the tax. It is true that a lawyer, as cited by relator, might occasionally take such a lien to secure his fee, and it would not render him liable for the tax, nor that some person who might sell another furniture would retain a lien to secure the payment of the purchase price would not be rendered liable for the tax. But neither of them would be engaged in the business and occupation of "lending money upon interest." It is the occupation that one pursues that is licensed and taxed, and this term has a well defined meaning under our law and the decisions of this court. Tarde v. Benseman, 31 Tex. 277 [31 Tex. 277]; Standford v. State, 16 Texas Crim. App., 331; Williams v. State, 23 Texas Crim. App., 499.

Relator next contends that the provisions of the law are violative of "the laws of both God and man" in that it provides "all compromises for usury or unlawful interest collected and received are contrary to public policy, and shall be void." Why the prohibition of a compromise of the penalty prescribed by law for doing this unlawful Act is any more violative of law than the prohibition of compromises of other unlawful acts, we are unable to discern. Art. 422 of the Code, and Shriver v. McCann, 155 S.W. Rep., 317. The law has fixed the penalty for charging unlawful interest, and certainly it can say that no citizen shall have authority to nullify this law as a matter of public policy.

We want to also say in behalf of relator that he did not contend that the provisions of this law could be construed into imprisonment for debt, and if the original opinion gave such an impression we readily make the correction at his request. His contention is that it is an effort to make the loan broker pay his debts, which provision of law is applied to no other citizen, and if it were, it would likely bankrupt many who are now engaged in legitimate business. If a man violates many of the laws of the State in which a pecuniary penalty is assessed, he is taken bodily and imprisoned in jail, and held until the penalty is paid, or he has served out the time either in jail or upon public works at so much per day. This was not to make him pay the debt, but to respect and observe the law. So in this instance, the law simply prescribes that if a man engaged in the loan brokerage business as defined, does not pay the penalties prescribed by law for charging unlawful interest, if he does do so, such person shall no longer be authorized under the law to engage in such business. It suspends his license to engage in business until he has paid the penalty the law prescribes if he charges unlawful interest, and such fact established in a court of law. Nothing more, and even absolute forfeitures under such circumstances have been sustained.

While perhaps we have not discussed every question presented in the motion and argument for a rehearing, yet we have done so either in this order or in the original opinion, and in our opinion, on the face of the law, without any facts surrounding the business before us, we do not think it violative of any provision of the Constitution, with the statement that under the provisions of the law the loan broker under his bond would be liable on his bond for no amount other than the penalties fixed for the charging and collecting of unlawful interest, and suit could not be maintained by service upon the county judge for any other transaction than that growing out of charging and collecting unlawful interest in making loans and taking security for the payment of such loans and interest on assignment of wages and powers of attorney to collect same or other order for unpaid chattel mortgage or bill of sale upon household and kitchen furniture.

The motion for rehearing is overruled.

Overruled.

DAVIDSON, JUDGE, dissenting.