Brand v. State , 109 Tex. Crim. 96 ( 1927 )

Appellant suggests that an act of the first called session of the 40th Legislature (Ch. 17, p. 30), having expressly repealed Arts. 1127, 1128 and 1129 of the P. C. calls into operation Art. 14 of the P. C. which reads as follows:

"The repeal of a law where the repealing statute substituted no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute."

We are not in accord with appellant's view of the matter. Art. 6162 Rawle C. S. (1925), is a definition of a loan broker. Carried forward into the R. P. C. of 1925 as Art. 1127 is identically the same definition. Art. 1129 of the P. C. provided for the punishment of a "loan broker" who engages in business without complying with the law relative to such business and affixed a penalty. Appellant was not prosecuted under Art. 1129. Subd. 14 of Art. 7047 Rawle C. S. fixed an annual occupation tax upon "loan brokers." Appellant was prosecuted for failing to pay said occupation tax. The Special Session of the 40th Legislature amended Art. 6162 of the R. C. S. by making a slight change in the definition of a "loan broker." One who engaged in such business as appellant was following would be a "loan broker" under the amended act the same as under the old, and while Art. 1127 of the P. C. was expressly repealed, the amendment of said Art. 6162 had the effect only of changing the definition of a "loan broker," and we think brings into operation Art. 16 of the P. C. rather than Art. 14 which is invoked by appellant. Art. 16 reads as follows:

"If an offense be defined by one law and by a subsequent law the definition of the offense is changed, no such change shall take effect as to the offenses already committed; but one accused of violating the first law shall be tried under that law."

The repealing statute substituted a new penalty for that which was included in Art. 1129 of the P. C., but as heretofore stated the present prosecution is not under that article.

In his motion for rehearing appellant renews his attack upon the "loan broker" law assailing it as unconstitutional upon various grounds. The law as enacted at the Regular Session of the 34th Legislature (Ch. 28, p. 48), was much emasculated by the opinion in Juhan v. State, 86 Tex.Crim. Rep.,216 S.W. 873. In the R. C. S. of 1925 there were brought forward and re-enacted as Arts. 6162, 6163 and 6164, and in the revised P. C., of 1925 as Arts. 1127 and 1129 such parts of the law as had not been denounced as unreasonable by the opinion in the case referred to. The original opinion in that case upheld the right of the Legislature to regulate loan brokers but went further than was thought proper in sustaining certain provisions of the law. In recording his dissent to the original opinion Judge Davidson concedes the right of the Legislature to regulate the business. In the opinion on rehearing is found the following:

"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 Ch. 28, Acts of the Regular Session of the 34th 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."

The opinion then proceeds to discuss the conditions of the bond, and the requirement of a waiver as to service of process, and concludes with this language:

"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."

It is apparent that the law in its entirety was not by the court regarded as unconstitutional and the objectionable features were not brought forward or re-enacted in the revision of 1925. It will be understood that what has been said has reference to the law as found in the 1925 revision, and not to be the amended law passed by the Called Session of the 40th Legislature, the court not being here called upon to construe such later act.

Appellant again urges that under the facts the borrower made no legal and enforceable assignment of his wages and therefore that appellant did not come within the definition of a "loan broker." Further supporting our views expressed in the original opinion upon the subject we refer to Slaughter v. Bank of Texline, 164 S.W. 27; Davis Goggin v. Bank of El Paso,156 S.W. 321. We quote from Vol. 2, Ruling Case Law, Sec. 12, pp. 603 and 604:

"* * * if a person is under an actual contract of employment his future earnings amount to a possibility coupled with an interest, and the right to receive them, though liable to be defeated, is vested, and this being the case he may assign them unless the contract of employment stipulates to the contrary, or the right is restricted by statute; * * * Ordinarily it does not appear to be necessary to obtain the assent of the employer to the assignment of wages under an existing contract, but if the employer consents it gives assurance of validity to the assignment."

From Corpus Juris, Vol. 5, at page 915, we take the following text:

"* * * Where an agreement is made between a debtor and his creditor that the debt of the latter should be paid out of a fund belonging to the debtor in the hands of a third party, and the agreement is communicated to such third party, and is assented to by him, this will be effective in equity to transfer an interest in such fund to the extent of his debt to the creditor."

Many authorities are cited supporting the text, among them being Wiggins v. McDonald, 18 Cal. 126; Hutchins v. Watts,35 Vt. 360. When appellant went with the borrower to the latter's employer who was informed of the proposed loan and their agreement with reference to the wages and the employer agreed in the presence of both the borrower and lender that funds from the borrower's wages would be retained by the employer and applied on the debt we think unquestionably it became an equitable assignment and was within the spirit of the law under consideration.

Appellant's motion for rehearing is overruled.

Overruled.