Ex Parte Hutsell

HABPEB, Judge. Applicant sued out a writ of habeas corpus alleging that complaint had been filed against him, charging him with violating the provisions of chapter 28 of the Acts of the Thirty-fourth Legislature, defining and regulating “Loan Brokers.” Belator admits he has violated each and every provision of the Act, but contends that the law is unconstitutional, and he, therefore, is entitled to be discharged. Not only does relator admit that he has violated every provision of the Act, but the complaint is so drawn as to necessarily bring in review each section of the Act. Section 1 provides: “A ‘loan broker’ is a person, firm or corporation who pursues the business of lending money upon interest and taking as security for the payment of such loan and interest an assignment of wages, or an assignment of wages with power of attorney to collect the same or ■other order for unpaid chattel mortgage or bill of sale upon household -or kitchen furniture.” It is‘insisted that as a banker or other money lender who does not pursue the business of taking as security for money loaned an assignment of wages or a mortgage upon household and kitchen furniture, does not come within the provisions of the law, the provisions of the law do not bear equally upon all citizens; that it is a capricious classification and unreasonable regulation of those who pursue this class of business. We are cited to the case of Owen v. State, 53 Texas Crim. Rep., 105, 112 S. W. Rep., 1075, as sustaining applicant’s contention. In that case the court was passing on a statute which levied a $5000 occupation tax on persons engaged in the business of purchasing assignments of unearned wages, and which Act exempted from the provisions of the law any person taking, accepting or procuring such assignments to pay or secure the purchase price of the necessaries of life, the pur *593 •chase price of a homestead, or improvements thereon, or any other article necessary to the wage earner in the pursuit of his employment, or the pajmient of premiums on life or accident insurance, etc. This Act was held unconstitutional, first, because it did not bear equally on all because of the above recited exemptions. The Act before us exempts no person from the operation of its provisions, but applies to all who engage in the line of business defined; second, it was held unconstitutional in that the $5000 tax was prohibitive.' This Act is not prohibitive, for it levies a tax of $150 per annum only, and if this is a character of business the Legislature has the right to regulate, certainty the amount of the tax levied would not render the Act void. There is no evidence offered in this case that such a tax would be prohibitive. In the Owens case, supra, it is said: “The Legislature may classify the subjects of taxation, and those classifications may, as they will, be more or less arbitrary, but where the classification is made, all must be subjected to the payment of the tax imposed who, by the existence of the facts upon which the classification is based, fall within it, unless exempted upon some other constitutional provision.” Tested by this rule of law, and none doubt its correctness, the Act under consideration would not be invalid. All persons, firms or corporations who pursue the business defined are brought within its provisions — no person pursuing that business is exempted from the operation of the law, and none who do not follow that occupation are required to pay the tax. It is levied on all who pursue that line of business. While a banker, or other money lender, who does not follow this occupation is not liable to the tax, the very moment the banker or any other money lender does engage in this occupation he becomes subject to the tax and all provisions of the law. We do not think it a capricious classification, for it selects a well defined class — men engaged in a specific character of business, and places all within this class under the operation of the law. Our laws have exempted from attachment, garnishment and forced sale household and kitchen furniture, current wages and the tools of one’s trade, and no one now questions the validity of such laws. They were passed to protect the laborer and the families of the citizenship of the State, that they might not become dependent upon the State. To go one step further and say that a man should not take a mortgage on wages and household and kitchen furniture to secure a debt due him without the husband and wife both agree thereto, and that he must give bond, if such a lien is given, that the creditor will not charge a greater rate of interest than that fixed by law, does not render the law unconstitutional. But it is insisted that a man has the right to do what he pleases with that which belongs to him. This is true unless the public welfare demands that he be restricted in those rights. A man purchases him a farm, and then marries him a wife. The law says the public welfare demands that he shall not be permitted to sell this homestead without the consent of his wife; that neither he nor the wife, nor both combined, shall give a mortgage *594 thereon. It is his property; why can not he sell or mortgage it at will ? Because the public welfare demands that he shall not be permitted to do so. The best interests of society require that he give up this much of his individual rights. And if the law can say that he can not sell the homestead without the consent of the wife, and can not mortgage it even with her consent, certainly the law can say that he can not mortgage the furniture within that home without the consent of the wife- To say the law can protect the wife and children in the possession of the home, and not protect them in the possession of the furniture inside of the home, would be an absurdity. And if it can be said that he can not mortgage it at all, it can certainly say that he can mortgage it only upon the conditions named in the law. The contention is made that poor men may need money and having nothing else to give a lien, upon. So may the man who only owns a home. There is nothing that is prohibitive in the law; it only requires that the creditor or money lender shall deal fairly with the borrower, and charge no more interest than the Constitution and laws of this State permit. And laws, 'which have heretofore been held valid, prohibit him, without the provisions of this statute, from charging more than the law permits, and this statute only gives to borrower or debtor a remedy whereby he can recover his money back provided the lender does charge him more than the law allows. The .“right of contract” was impaired, if impaired at all, in providing that the lender should not be allowed to charge more than 10 per cent interest on the money, and if he did so charge and collect, even though the borrower had contracted to pay it, the borrower might collect back double the amount so paid. And such law has been held valid. Taylor v. Sturgis, 68 S. W. Rep., 538. This law simply provides a mode of collection. The second section, which provides that before engaging in such business one must give bond in the sum of $5000, conditioned that he will faithfully comply with each and every requirement of the law governing such business, and will pay to the person dealing with such loan broker any judgment that may be obtained against him, is not an unreasonable requirement, and if the business is such a business as may be regulated by law, the Legislature had the right to provide that' such bond should be given as in the pawnbroker statute, the liquor license statutes and other similar laws. And it is not an unreasonable requirement that such broker shall keep a set of books in which all his transactions are to be truly recorded. The section of the law which requires each loan broker, before engaging in .such business shall file with the county clerk of the county in which he is engaged in' business, an irrevocable power of attorney, constituting the county judge his agent and attorney in fact, for the purpose of accepting service for him, or being served with citation, is not a new provision of law. The law makes an agent of a railroad company such an agent; the statutes require foreign insurance companies to file such power of attorney, constituting a named person its agent to accept service of citation, or person upon whom citation may *595 be served. This is a condition placed by law upon tbe right to- engage in sucb business, and we must assume, in the absence of any showing to the contrary, that the necessity for such provision existed, otherwise the Legislature would not have so provided. Foreign companies or non-resident persons may be engaged in this character of business, in this State, and the Legislature deemed it absolutely essential to the proper enforcement of the law. At least, in the absence of any showing to the contrary we must presume there existed a necessity therefor or the Legislature would not have so provided. The contention that the law should have selected some other person than the county judge, is one addressed to the wisdom of the Legislature, and does not affect the constitutionality of the law. The fact that some of the cases for recovery of usurious interest may be brought in the County Court, does not render the law invalid, even though the county judge should be held disqualified to try the cause by reason of his agency to have citations served on him. The question of whether or not he would be disqualified does not arise in this case, therefore we do not pass on that question, but only the question if it should be held that it did disqualify him, this would not render the law invalid. There are a number of instances in which trial judges are disqualified, and ample provision is made by the law to select a special judge in such instances. Section 8 provides that if any judgment obtained upon any bond given by a loan broker shall remain unpaid for sixty days, the license to engage in such business shall be suspended until such judgment is paid. Again we think the Legislature had the authority and power to place such restriction in issuing the license. The absolute forfeiture of license has been sustained in this State. And if the Legislature has the right to declare a forfeiture of the rights under the license, certainly it had authority and the right to declare a suspension of the license and say that anyone who continued to pursue the business during the suspension of the license should be guilty of a misdemeanor, and punished by a fine for each and every day the broker should engage in such business during the time the law declares his license shall be suspended, and this section can not be construed to be imprisonment for debt. The law does not pretend to say he shall be imprisoned if he never pays his debt; it simply says if he does not pay a judgment obtained under the law his right to continue in the business shall be suspended, and he shall not engage in such occupation during the time his license is suspended, and provides a penalty, not for failing to pay the debt, but engaging in the business of loan broker during "the time the law has suspended his license to engage in such business. If he does not engage in the business 'while the license is suspended he can not under the law be imprisoned if he never pays the judgment and debt. Section 9 of the law, which provides that “any judgment obtained by any person against a loan broker under these articles or under the laws of the State of Texas, shall be collectible out of the bond herein provided for,” can not and should not be construed to mean that a judg *596 ment for debt not incident to nor growing ont of the loan brokerage business may be collected out of the bond. If such construction should be placed thereon, then we think this provision would be invalid, but the invalidity of such provision would not invalidate the entire Act." The proper construction of this section is made plain by the conditions of the bond required to be given, which provides simply that the bond shall be conditioned for the faithful compliance with each and every requirement of the law governing the business defined in the Act. The only legitimate construction to be placed on the language of section 9 is that the judgments obtained under this law, or any other law governing loan brokers, as defined in this Act, which have heretofore or may hereafter be “passed by the Legislature, shall be collectible out of the bond given. And as said, if section 9 should be held invalid, because of doubt as to the meaning of the words employed, the object and purpose of the law is made plain by the other provisions of the Act and can be accomplished thereunder, and the bond would be liable under section 2 for all judgments obtained because of a violation of the provisions of the law, and the Act should be held valid. We have not discussed the law by sections, but in the opinion have passed on every question raised by relator, and we are of the opinion the law is in violation of no provision of the Constitution. The relator is remanded. Relator remanded- to custody.