Williar v. Baltimore Butchers' Loan & Annuity Ass'n

Bartol, C. J.,

delivered the opinion of the Court.

This suit was instituted by the appellant to recover money paid to the appellee in excess of the legal rate of interest.

*555 The right of a borrower to maintain, an action of this kind has been settled by the case of Scott vs. Leary, 34 Md., 389 . The defence relied on by the appellee is based entirely upon the Act of Assembly of 1876, ch. 358. The Act amends Art. 95 of the Code, relating to Usury, by adding thereto an additional section as follows:

“Provided, however, that nothing in the preceding sections of this Article shall be so construed as to make usury a cause of action in any case where the bond, bill obligatory, promissory note, bill of exchange or other evidence of indebtedness, has been redeemed or settled for by the obligor or obligors, in money or other valuable consideration, except that of a renewal in whole or in part of the original indebtedness, but this section shall not apply to any cases of claims or suits now instituted by assignees in bankruptcy.”

In this case the mortgage debt upon which the alleged usury was paid, was finally settled in September 1875. The appellant protesting at the time against what he considered an illegal demand, and finally paying it, as he states in his testimony, “to have his property released.”

This. action was brought on the 18th day of October 1875. The Act of Assembly was approved on the 7th day of April 1876, while this suit was pending.

The Circuit Court rejected the plaintiff’s prayers and granted the prayer of the defendant, thereby virtually instructing the jury that the Act of 1876, operated to destroy the plaintiff’s right of action.

The first question to be considered arises upon the construction of the Act of Assembly. Does it apply to pending cases, or must it be construed as intended to apply only to future transactions ?

Ho rule of construction is better settled than that every statute is to be construed as prospective in its operation, unless the intention of the Legislature that it shall have a retroactive effect is clearly expressed in the statute. This *556 rule is founded in reason and justice, and has been repeatedly recognized and enforced by the Court of Appeals. We refer to Baugher vs. Nelson, 9 Gill, 303 ; State vs. Norwood, 12 Md., 206 ; Clark vs. Mayor, &c. of Balt., 29 Md., 283 ; Davis, Adm’r vs. Clabaugh, 30 Md., 508 , and Herbert and Hairston vs. Gray, 38 Md., 529 . But for the exception contained in the Act, we should have no hesitation in construing it as prospective only in its operation, and as having no relation to a case where the cause of action had arisen before the Act was passed, and which was pending at the time of its passage. The contrary intent is not plainly expressed in the body of the law, and the general rule of construction would apply. 'But the cardinal rule of construction is to ascertain the intention of the Legislature, as it is expressed in the words of the statute, and for this purpose the whole must be considered together. The law provides “that this section shall not apply to any cases of claims, or suits now instituted by assignees in bankruptcy.” This provision removes whatever ambiguity there is in the antecedent woi’ds of the law, and shows plainly the intent of the Legislature that it should have a retroactive operation, and apply to all cases, save those expressly excepted. If this be not the meaning and intent of the Legislature, this last provision would be nugatory and useless ; for why should the Legislature, by express words, except from the operation of the Act, the particular class of cases mentioned, unless they had been embraced within the general provisions of the law. These are sufficiently broad and comprehensive to embrace all cases, whether antecedent or subsequent, and the concluding provision to which we have referred, demonstrates that such was the legislative intent.

A proviso in a statute excepting from its operation a particular class of cases, which might or might not be otherwise embraced within its general provisions, often *557 comes in aid of its construction. Magruder & Tuck vs. Carroll, 4 Md., 335, and Alexander vs. Worthington, 5 Md., 472, were cases involving the construction of the Act of 1849 relating to wills. The question was whether the Act applied to wills executed before its passage. The first section was ambiguous, and taken alone would have been construed as prospective only in its operation. The second section excepted from its operation wills made before the passage of the Act, where the testator should die before the first day of June thereafter. This section, the Court said, removed all ambiguity from the first section, and clearly showed the intent of the Legislature that the Act should have a retroactive effect, and apply to all wills whenever executed, except such as were particularly mentioned in the second section ; for upon any other construction, the second section would be useless, and without meaning. The reasoning of the Court in those cases, and the rule of construction there adopted are applicable here. We refer also to Briggs vs. French, 2 Sumner, 251, 257, and Adams vs. Bancroft, 3 Sumner, 384, 387, as showing the effect which an exception in a statute has upon its construction.

After the best consideration we have been able to give to this question, we are of opinion that the Act of 1876 was intended to have a retrospective operation, and to apply to all cases, whether arising before or after its passage.

The next question to be considered is whether it was within the constitutional power of the Legislature, by a retrospective statute, to take away or impair the plaintiff’s right to maintain the suit.

It is contended by the appellant that to give to the Act of Assembly this effect would be within the prohibition of the Constitution of the United States' Art. 1, sec. 10, which declares that “ No Stode * * shall pass any law impairing the obligation of contracts.” The proposition *558 maintained by the appellant is that when the Act was passed he bad a valid legal right of action, and that the Act of Assembly taking away his remedy is in violation of the constitutional inhibition ; and he contends further that the Act so far as it is sought to apply it to the present case is inoperative; because the Legislature cannot by a retrospective law take away or destroy a vested right.

The construction of the constitutional provision, so far as it relates to the remedy or right of action has heen often considered and decided. The result of these decisions is thus stated in State vs. Jones, 21 Md., 487 : “ The leading cases on this subject all recognize the distinction between the obligation of a contract, and the remedy by which it may he enforced, and while they treat the latter as a mere creature of the law, at all times within the scope of legislative regulation, they yet establish the rule that the abrogation or suspension of a remedy necessary to enforce the obligation ■'of an existing contract, according to its spirit and true legal intent, is within the inhibition of the Constitution and therefore void."

We refer to Cooley on Cons. Lim., 284 to 294, where this subject is fully discussed, and many cases cited. On page 289 the author says, “ But a law which deprives a party of all legal remedy must necessarily he void." It has been repeatedly held by this Court that the Legislature cannot by a retroactive law,, take away vested rights. Baugher vs. Nelson, 9 Gill, 309 ; Wilderman vs. Mayor, &c., of Balt., 8 Md., 551 ; Bramble vs. Twilley, 41 Md., 436 . The application of this rule to the case before us, depends altogether upon the nature of the legal right asserted by the plaintiff. The Code, Art. 95, fixes the legal rate of interest, and declares that a person guilty of usury shall forfeit all the excess above the legal interest.

The appellee contends that this is a suit to enforce the forfeiture, that the claim of the plaintiff is for the forfeiture or penalty imposed by the Code, which it was in *559 the power of the Legislature at any time to alter or repeal. If this be the nature of the demand, there can be no doubt about the correctness of the proposition. It is well settled that such a claim is not within the protection of the constitutional provision, not resting upon or growing out of contract, but based exclusively upon the statute, and that it is in the power of the Legislature at any time to repeal or alter the statute, and the right to recover the forfeiture is thereby destroyed, although it may have been incurred before the statute imposing it has been repealed. Such is no doubt the well established doctrine of the law. But a reference to Scott vs. Leary, 84 Md., 589 , will show that this doctrine has no application to the present case. That was a suit like the present, to recover money which had been paid by the plaintiff upon a usurious contract, in excess of the legal rate of interest. It was there held that the suit was not for the'recovery of a forfeiture, that the right of action was not conferred by the Code, nor was it based upon the provisions of the Code, but existed at the common law, and grows out of the contract and the legal rights of the parties with respect thereto. The Code, Art. 95, sec. 1, fixes the legal rate of interest at six per centum per annum; and sec. 4 provides that any person guilty of usury shall forfeit all excess above the principal sum and the legal interest thereon, “ which forfeiture shall enure to the benefit of any defendant who shall plead usury and prove the same." This is the only forfeiture declared by the Code, and the only mode of enforcing it as therein provided, is by a defendant who “shall plead usury and prove the same." It is clear that this is not a proceeding to enforce the forfeiture.

The provisions of the Code have no other application to the case, except as they fix the legal rate of interest to which the lender is entitled, all in excess of that rate paid to him is money received by him in violation of law, to which he had no legal right, and which the other party is *560 entitled to recover back in an action of assumpsit, as money had and received to his use.

■ In such case the implied assumpsit arises at the common law. The right of action is not conferred by the Code, which is resorted to as evidence fixing the legal rights of the parties under the contract, as respects the rate of interest, but is not tbe ground of the right of action. This is the effect of the decision in Scott vs. Leary, which seems to us to be conclusive of the case. It being clear both upon reason and authority that a claim or right of action of this kind when it has become vested, is protected by the constitutional provision, and cannot be-destroyed or taken away by the Legislature by a retroactive law.

“ A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Where it springs from contract, or from the principles of the common law, it is not competent for the Legislature to take it away.” Cooley on Const. Lim., 362.

Many authorities are cited by the author which it is not necessary to refer to here.

For these reasons we are of opinion the Circuit Court erred in granting the defendant’s prayer.

The point made, by the appellee that the money in this case having been paid voluntarily, cannot be recovered back, is answered by the decisions in Baugher vs. Nelson and Scott vs. Leary, in which it was held that the debtor being considered in law in vinculis, the doctrine of voluntary payment has no application to such cases.

As the case must be sent back for a new trial it is necessary to consider the plaintiff’s prayers.

The appellee is a corporation created under the Act of 1868, ch. 411, its objects, as set out in the charter, are “■ the purchase and improvement of real estate, advancing money on mortgages, &c.” The aggregate of the capital stock is $300,000, and the capital stock is divided into 1000 shares of the par value of $300 per share.

*561 It appears by the proof that the appellant, not being a member of the corporation, made application to it, to borrow $3000, to be secured by a mortgage of his house and lot in the city of Baltimore ; that he was informed under defendant’s rules, he would have to subscribe to some shares of the defendant’s stock, thereupon he agreed to take the loan, and did on that day subscribe for eleven shares of stock which was estimated, when paid up, at the par value of $300 a share, on the same day he paid the defendant on Account of the arrangement for the loan the sum of $14.85 ; three or four days thereafter, he completed the negotiations for the loan, and received the sum of $3025, and executed the mortgage.

This instrument recites that the appellant, being a member of the corporation, has received an advance of $3300 on eleven shares of its stock held by him, in his own name. The condition of the mortgage is that the mortgagor shall make the payments, and perform the covenants herein on his part to he performed — as follows:

1st. That he will pay the weekly sum of $14.85 (being for weekly dues or interest) for and during (the period) of three hundred weeks.

2nd. That he will pay all taxes on the mortgage debt hereby created, and the annual rent and taxes on the mortgaged property.

3rd. That he will pay all fines that may be imposed on him by the mortgagee, and obey, all by-laws and rules, now in force, or thereafter adopted by the association.

The instrument further declares that the mortgagor “released to the mortgagee all his interest in, and the shares hereby redeemed, and to all profits that may be hereafter made by the mortgagee.”

It thus appears that the appellant upon a loan or advance to him of $3025, covenanted to pay weekly for three hundred weeks the sum of $11, on account of principal, making in all $3300, and to pay for the same length of *562 time the interest on $8300, in weekly payments of $3.85— making as stated in the mortgage $14.85 per week. Such a contract between individuals would not be sanctioned or enforced, being clearly usurious, the mortgagor could be compelled to pay no more than the legal interest on the sum actually loaned. It is said that the appellee is authorized to enter into such contracts by the Act of 1868, ch. 471, sec. 92. That section provides “That such of the provisions of the foregoing sections, from section 84 to section 91, both inclusive, as shall be found applicable to corporations which may be formed in this State, for the purpose of loaning money on real or personal property, shall be held to apply to said corporations.” The sections from 84 to 91 refer to a class of corporations known as “ Building Associations” and which were first authorized in this State by the Act of 1852, ch. 148. That Act came before this Court in Robertson’s Appeal, 10 Md., 397 , and it was held that mortgages to such associations, made in conformity to the Act were not usurious; for the reason. that they are not made to secure the repayment of money loaned, but the mortgagor being a shareholder for a certain sum redeems his shares, and covenants to pay to the association certain stipulated instalments, weekly or otherwise until his mortgage is redeemed, not by the return of the money advanced, nor for any fixed period of time ; but until by the accumulation of the funds of the association the unredeemed shares shall become of a certain value. Thus the mortgagor though his shares are redeemed, continues to have a joint interest in the association-. The transaction is not one in which money is loaned and its repayment secured by the mortgage, and it has been held that the usury laws have no application to it. It is such associations as those, that are contemplated in sections 87 and 88 of the Act of 1868, ch. 471, but those sections have no application to a corporation like the appellee, nor to such a transaction as the one under consideration, which *563 was nothing more nor less than a loan of money hy the association to the appellant, and a mortgage of his property for its repayment with usurious interest. The fact that he became a shareholder and the money advanced to him is called a redemption of his shares, makes no difference ; he subscribed for the shares in order to borrow the money, and immediately transferred or released them to the association, and ceased to have any further interest in the assets or funds of the corporation.

(Decided 16th February, 1877.)

The first prayer of the plaintiff ought to have been granted, declaring that the mortgage does “ not conform to the provisions of the law authorizing corporations of this kind to make advances in redemption of their stock, and must he governed hy the ordinary rules between mortgagor and mortgagee or debtor and creditor.” Baltimore Permanent Building and Band Society vs. Taylor, 41 Md., 409 ; Birmingham and Wife vs. The Maryland Band and Permanent Homestead Association, ante p. 541. .

It follows from what has been said, that the second and third prayers of the appellant ought also to have been granted. The third prayer states correctly the rule for calculating interest where partial payments have been made.

Judgment reversed, and new trial ordered.