The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-03
THE UsURY LAWS.
0panSsn Of CHIEF ustice fancy Oh Usury and
Usurious Loans.


Dill %. ENieaas-- This action is brou ght By The
eHlerssc OF bill Of exchange dra wn npon the de-
PENDANTS and socepted by thss, for 81 900. .
The defendants plead that the bill vas given TO
secure the pay ment OF money ioane by the plaintiff
- The psyee OF toe bill, upon which an interest ex
oeediDg six per cent, WAS reserved, and that sucn
contract usurious, and the plaintiff not entitled
10 maintain action upon ~. To this plea the
plahtiR demuned. and the question submitted to
Ne court on these pleadings NJ, whether under the
constitution of MARY land, adopted IN 1851 action
money where an interest Of mere tn Elk per cent
II reserved or received.
TIE clause Of the constitution Is in the following
words
Eiz per cent per annum, and higher rate shall be
taken demanded the Legislature shall provide by
ussry.
This provision Is contained In art. g. acc. 40, uu
der tne head OF Legislative Department" nd by
Ne third article of tho Declaration Of Rights al
November. 1850, 5wni n had not expired at the
adoption of the constitution, and not altered
by Il, were contir ued force, subject evsstheess
. the revision Of an amendment and repeal by tho
Legislature OF the State.
The acts Of Assembly material to this question,
vhisA we're passsd previous ~ tbs adoption Of the
constitution, werd the acts Of l704 and 1845. The
Ast section Of the set OF l70l declared that per
soA should exact or take ab,ve the rate Of six per
cent per annum upon tho loan Of any moneys,
good. or M rchandIse, or other CON noiiss, TO bs
paid in neneJ; the second section declared that all
contracts by which higher rate OF interest was NJ
ctiyed should be void; and the third section nlct-
% penalties for taking receiving more than the
Ias Of interest limited by that act. The provisions
o. his law were materially changed by the act Of
1916. B this act the lender wSs entitlsd to re-
cover Abe amount actually loaned with six per cent
hit o upon IT, although the cJnsIact was usuri0us
ana sipuised foF higher interest, and IL repealed
sitngs Thor the thiiS section Of the act of l704.
The act Of 1915 WA still IN force Wien the Con-
ss,susion sa adopted, and the poias in issue be-
tween the parties, uyon the demurrer is, whs Their
te provisions OF rbis It are Inconsistent with the
clause Of the Cons.u ion before recited and there
fore repcalei by it. In determining this question:
the wisdom or policy OF ususry laws Is not subject
Sos the consie GRAFTON Of the court. That was
question for tbs people Of Maryland, when thsy
adopted the Constitution and it il the duty Of the
court to carry into effect the provisions Of that in
g0ument according TO its true intent, 10 bs gathered
from its own words; and referring to the previous
egis alton Of the State, only so far as it may con-
6ibute TO ,nustr ate the meaning Of doubtful
bsguous language, any such be found in the con-
stiautions al to ascertain what previous acts of
Asse mbly are still in force. Il would be difficult we
think TO raise doubt 20 the meaning Of the pro-
hibitosy part Of the y ction Of which we are speak
ing. II dec'3rss that the rate OF interest
shal not exceed six per cent per snnum, and
no higher rate sbsa bs taken or demanded"
These words are free fem all ambiguity. They
psoAibit in plain, positive aud dre te-ms the tan
ing Or demanding more than six per ,ent interest,
Aid this point It refers nothing to to,ure ag'sa.
Non. The constitution itself makes the prohibition
and all future legislltiops must be subordinate and
eOH5or mabe 70 this provis ion; and whoever takes
or demands more than six per cent while the con-
situation 10 in force, does au unlawful ac.-aa act
forbid dem by the constitution of the State. Nor do
Tie words which $ollow qualify or restrain in any
degree the meaning Of tae words abve quoted
1hsy declare thu. .the Legislature shall provide by
NV ell necessary foi feitures and penalties against
usuyy" Now, usury consists in taking an interest
1cg money above that allowed by law. TIE taking
Of more Than six per cent is therefore, usury; and
Ne words last quoted treat 1t an ofsnce and d.
rect the Legislature to punish it with penalties and
1oreiturf. The words do not merely give the power
70 pupish-they are mandatory, and make it the
duty Of the Legislature to punish dsobeaience TO
that provision by forfetures and penalties. Ger
tain'y, If fhe issirg or demanding OF more than
SIX PER cent not nsenced 70 be absolutely pro-
Nhiied BY tie preceding part of the section there
would be no pr pristy IN commanding it. tot fur
Mashed; the words last quoted, there ore, do no,
E.hy Sr re oa re meaning Of the preced-
EsD&ls Of the constitution, sitter fixing tbs lnt
Of teres. which patty might lawfully take or de-
nand, proceed make that prOvs sion more effsc.ual
by rqstrlng the Legislature t, enforce IL, and -
in6ict f0rfeltures and penalties upon any one who
should thereafter take or demaod an amannt of in
- ess exceeding that prescribed by .he cons. tio
III. esu %saag b. 81 sas s,
n Greet is takea or demlndsd b. enforce in a
ssaft OF justice? 1t L. trne the constitution does
~. say 10 express te MS thar such contract shall
be void. Nor was such provision necessary to IN
validate it for II is we'll settled by multitude Of
decisions in It's country and in England, that
contract to do an act forbidden b lag is void AID
sssp ct present to refer to Judicial decisions to sup
port this proposition. Many casss to this effect
are quoted In the opaioa delivered by the Supreme
Court Of the United States IN the cass Of the Bark
Pet, 527 and we. are NO, aware Of any de .fsica IA
any court In which contrary doctrine has b,
bald. Indeed, In o Slate where the Leesl3.uf.,
executive and judicial departments ara sspa-
rps.nkr Ia U rfoS nd
lDenestual II the Judicial power enforced, in
whole or in part, the performance CT contract to
% an act which Is altogether l,rbijdrn to be done
y the constitution or Ia W Of the State And -
Ne constitution has forbidden the taking or de-
handing of more than six per cent, no contract
ade IN this State can be enforced when higher
ate Of interest is taken or demanded by the con-
yact.
This view Of the subject is fully supported by the
3eckion Of the Supreme Court in the case of the
bark Of the United States vs. xeHs, Eereiubefore
eferrd to. The charter Of the bank contained q
Iroyision IN the folio wing words:-"It (the bAnk)
hail NOS be at liberty TO purchase any public deb
hate ver nor shsl Il take than at the rate of
per cent per annum for or upon its loans or dis
ounts'" And in An action brought by the bank
pon prouissory note, the defendant pleaded that
Vas discouuted upon An agreement to pay the
Ank Ligher rate Of interest than six per cent
70 q is plea the bank demurred, thus bringing the
uestioh before the court, in the same mode OF
Heading adopted BY the counsel in this case. Aud
u. Sergeant, who argued the case for the bank,
ontended Gas the counsel for the plaintiff have done
ere) that mere prohibition,to take more than six
~.nt did not void Q contract to take more; and
- vhere an agreement is voided 1t Is always Ia
nesouence Of a exv.ssss provision BY law to that
Hect. Ga Pet. 53l.)
Bat the court held Otherwise, and the Language
We Supremss vourt In deciding that question "
Appropriate and directly applicable to the case
fore us that We give II In the words Of the court.
hey are - followS:-
some doutyts have been thrown out whether, Is 4 .
arter speaks only OF talking 1t apply to case Ia
ch the interest has been only reserved not received
t on that point the majority of the court clearly
opinion that reserving must be implied in the word
hing II cannot be permitted by law to stpulate
the reservation Of that which IL is not permitted TO
ceive Il Hawk r. Co., In those instances in which
|urts are called upon TO inAct penalty upon tie
essary otherwise for then the actual receipt is
car.tlv necessarv 70 consumunate the offence But