Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1854-12-01
Masbingtun gentinel.
Opinion OF Chief Justice fancy ON Usary
and Usurious Loans.
Circuit Court u Maryland District.
~ 49, 4 y. m Ia.

NOocMOcf IeTnt, 1904.
DILL as. ELLIcorrs. This action is brought
by the endorsee of bill Of exchange drawn
upon the defendants and accepted by them for
$1,000.
The defendants plead that the bill was given
to secure the payment of money loaned by the
plaintiff to the payee of the bill, upon which
an interest, exceeding six per cent. was re-
served, and that such contract was usurious,
and the plaintiff not entitled to maintain an
action upon it. To this plea the plaintiff de-
INJURED, and the question submitted to the court
on these pleadings is, whether under the Con.
stitution of Maryland, adopted in 1851, an &C.
ton can be maintained upon contract for the
loan of money where an interest of more than
six per cent. is reserved or received
The clause of the Constitution is in the FOL
lowing words:
That the rate of interest in the State shall moi
exceed SIX per cent per annum, and no higher
rate shall be taken or demanded, and the legisla,
lure shall provide by law all necessary forfeitures
and penalties against usury.n
This provision is contained in art. 8, sec. 40,
under the head Of Legislative Department.
and by the third article Of the Declaration Of
Rights, all acts of assembly in force on the
first Monday in November, 1850, which had
not expired at the adoption of the Constitution,
and were not altered BY it, were continued in
force, subject nevertheless to the rivision of an
amendment and repeal by the Legislature Of
the State
The acts of assembly material to this cues
ton, which were passed previous to the adop-
ton of the Constitution were the acts of l704
and l845. The first section of the act Of l704
declared that no person should exact or take
above the rate of six per cent. per annum upon
the loan of any monies, goods or merchandise
or other commodities to be paid in money; the
"a section declared that all contracts by which
higher rate of interest was received should be
void; and the third section inflicted penalties
Tor taking or receiving more than the rate OF
interest limited by that act. The provisions Of
this law were materially changed BY the act OF
l845. BY this act the lender was entitled to
recover the amount actually loaned with six
per cent. interest upon it, although the contract
was usurious and stipulated for higher inter
est, and it repealed altogether the Sd section
OF the act of 1904.
The act of 1916 was still in force when the
Constitution was adopted, and the point in issue
between the parties, upon the demurrer is
whether the provisions of this act are inconsis-
tent with the clause of the Constitution before
recited, and therefore repealed by it. In de,
termining this question the wisdom or policy
OF usury laws is not subject for the consider
alton of the court. That was question for
the people Of Maryland, when they adopted the
Constitution and it is the duty of the court
to carry into effect the provisions OF that instru-
ment according to its true intent to be gathered
from its own words; and referring to the pre-
vious legislation Of the State, only so far as it
may contribute to illustrate the meaning Of
doubtful or ambiguous language, If any such
be found in the constitutions and to ascertain
what previous acts of assembly are still in force
1t would be difficult we think to raise a doubt
as to the meaning Of the prohibitory part Of
the section of which we are speaking. 1t de-
clares that the rate Of interest shall not ex-
coed SIX per cent per annum, and no higher
rate shall be taken or demanded" These words
are free from all ambiguity. They prohibit in
plain, positive, and direct terms, the taking OF
demanding more than six per cent. interest,
and on this point it refers nothing to future
Legislation. The constitution itself makes the
prohibition, and all future legislation must be
subordinate and conformable to this provision.
And whoever takes or demands more than six
per cent while the Constitution is in force, does
an unlawful act, an act forbidden by the Con.
sitution of the State. Nor do the words which
follow, qualify or restrain in any degree the
meaning of the words above quoted They de.
clare that "the legislature shall provide by law
all necessary forfeitures and penalties against
usury." Now usury consists in taking an in.
terest for money above that allowed by law
The taking Of more than six per cent is there
fire usury. And the words last quoted treat il
as an offence, and directs the legislature to
punish it with penalties and forfeitures. The
words do not merely give the power to punish.
they are mandatory and make it the duty Of
the Legislature 70 punish disobedience 10 that
provision by forfeitures and penalties.
Certainly, If the taking or demanding Of more
than six per cent. was not intended TO be alb
solutely prohibited by the preceding part of the
section, there would be no propriety in com
handing it TO be furnished.
The words last quoted, therefore, do not
qualify or restrict the meaning Of the preced-
ing words. On the contrary, they show that
the trainers Of the Constitution, after fixing the
amount Of interest which party might law.
fully take or demand, proceed TO make that
provision more efectual by requiring the legis-
lAture TO enforce it. and to inhict forfeitures and
penalties upon any one who should thereafter
take OF demand an amount Of interest exceed.
ing that prescribed by the Constitution.
This being the evident meaning Of the Ian
guage Of this section, can a contract, by which
higher interest is taken or demanded, be en-
forced in court Of justice? 1t is true the
Constitution does not say, in express terms
that such a contract shall be void. Nor was
such a provision necessary to invalidate IL
For il is well settled, by multitude of deci
sons in this country and in England, that a
contract to do an act forbidden by law is void
and cannot be enforced in court Of Justice
We do not stop at present to refer to judicial
decisions TO support this proposition. Many
cases 70 this effect are quoted in the opinion
delivered by the Supreme Court Of the United
States in the case Of the Bank of the United
States against Ovens reported in I'd Pet, 527
and we are not aware Of any decision in any
court in which q contrary doctrine has been
held. Indeed, in State where the legislature
executive, and judicial departments are sepa-
rated, II would render all law uncertain and
Intellectual, if the judicial power enforced, in
whole or in part, the performance of contract
to do an act which is altogether forbidden TO be
done by the Constitution or laws of the State
And as the Constitution has forbidden the tax.
ing or demanding Of more than six per cent,
no contract made in this State can be enforced