Lindsay v. United States Savings & Loan Ass'n , 120 Ala. 156 ( 1897 )

BRICKELL, C. J.

The bill was filed by the appellant to be let ixx to redeem real estate she had by mortgage conveyed to the appellee, a cox-poration.organized and existing under the laws of the State of Minnesota, having therein its domicile or principal place of business, and to enjoin the appellee from the exercise of a power of sale contained in the mortgage. The transactions involved, in all their legal aspects, are identical with the transactions which were the subject of extended discussion, deliberate consideration, and reconsideration in the case of Falls v. U. S. Savings, Loan & Building Co., 97 Ala. 417. This was the first of our cases necessitating consideration and decision touching the nature or character and extent of obligation of the peculiar transactions denominated “loans’’ — of such frequent occurrence in recent years — had with foreign corporations of differing' corporate names in designation of corporate power, franchise, and purpose. The conclusions of the court then announced were that the real transaction was a loan of money, negotiated and consummated in this State, by a mortgage of real estate here situate to secure payment, and was governed by the law of this State, though the promissory note taken from the borrower was payable in-the State of the creation and domicile of the corporation, and the note and mortgage taken to secure its payment each stipulated that it was made with reference to and under the laws of the latter State ; that, under the laws of this State, the transaction was usurious, a rate of interest exceeding 8 per cent, being reserved ; and that the scheme of premiums, stock taken to represent premiums, and fines for non-payment of monthly instalments, was a mere shift or device to cover the usury. The course of reasoning by which these conclusions were reached it is unnecessary to repeat: but we may observe that subsequently the courts of North Carolina and Texas, after exhaustive discussion, reached similar conclusions, citing the Falls Case as authoritative.—Meroney v. Loan Association, 116 N. C. 882, 21 S E.Rep. 924, and 47 Am. St. Rep. 841; Loan Association v. Griffin, 90 Tex. 480, 39S. W. Rep. 656. The legal identity of the present transaction with that which was the subject of the former decision is hot controverted, it is conceded in the argument of the counsel for the appellee. The contention is, and it prevailed in the court of chancery, that the transactions have been legalized, and rendered obligatory, by subsequent legislative enactment; and the validity, interpretation, and construction of the enactment are the points to which the argument of counsel is mainly directed. The enactment forms the fifth section of an act of the General Assembly approved February 7, 1893 (Pamph. Acts 1892—93, pp. 665-667), and reads : “That any premiums, fines, or stock heretofore taken, and hereafter taken to represent premiums for loans made by any building and loan association doing business in this State, shall not be treated as interest, nor render such association amenable to the laws relating thereto ; but the said premiums, fines and stock taken to represent premiums, shall be collected as debts of like amount are now collected by law, and according to the terms and stipulations of the agreement or contract between the association and its members, and in case of any building and loan association which does not, under its methods, charge premiums of the borrower, it shall not be deemed usury that the payments shall be required iñonthly, when the contract on its face charges only 6 per cent, interest.” A casual comparison of the enactment with the former decision manifests the incongruity between them, and that they cannot co-exist as rules or principles by which the nature or character and obligation of the transactions may be measured. There is not a proposition announced by the former decision, now material, which is not by the enactment reversed, and, as to “premiums, fines, or stock taken to represent premiums for loans,” without regard to the time when the transactions occurred ; for in this respect, by its own words, the enactment is directed to the past as well as the future. The proposition in support of the validity of the enactment is that the constitution does not forbid legislation merely because it is retrospective ; that its limitations in this respect are express, to neither of which is the enactment offensive ; that the enactment has no other operation than to take from the borrower the defense of usury, and is, in its essence, remedial. We agree that the constitution contains no express inhibition of retrospective legislation ; that its limitations of legislative power in this respect are expressed in article I, § 28, borrowed from the constitution of the United States, directed to expost facto laws, and laws impairing the obligation of contracts, and in article IV, § 56, which reads : “There can be no law of this State impairing the obligation of contracts by destroying or impairing the remedy for their enforcement; and the General Asssmbly shall have no power to revive any right or remedy which may have become barred by lapse of time, or any statute of this State.” Whether a statute may operate retrospectively, taking from the borrower the defense of usury, in view of our statutes, the history of our legislation, and the unbroken course of judicial decision, is a grave, far-reaching question, upon which the necessities of this case do not require the expression of an opinion. It must be admitted that whatever may have been the differences of opinion as to the nature or character and obligation of the transactions involved, and whatever of room for such differences may have existed, having passed deliberate judicial exposition and declaration, a due regards to the maxim of stare decisis would have compelled judicial adherence, silencing controversy. “To consider matters thus adjudged as open to reiterated discussions would lead to great public inconvenience.” It would lessen confidence in the dignity and stability of the judgments of this, the court of last resort, provoking litigation or its continuance. The observations of Chancellor Kent are instructive, and have been often quoted by courts and text writers : ‘ ‘If a decision has been made upon solemn and mature consideration, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded and implicitly followed.” And further: “When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and, if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law.” Error is not imputed to the former decision, nor is its efficacy as a binding precedent questioned. In whatever form the proposition in support of the retrospective operation of the enactment may be expressed, when reduced to its last .analysis, legislation has reversed and annulled the former decision ; has done that which the courts could not have done of their own volition, without departing from settled, conservative principles, founded on the highest reasoning and the highest consideration of public policy; has declared that the transactions are not usurious, — to employ its ofwn words, “that any premiums, fines, or stock heretofore taken, and hereafter taken to represent premiums for loans made by any building and loan association, shall not be treated as interest, nor render such association' amenable to the laws relating thereto.” The enactment is its own expositor. Without repeal or modification of the statutes relating to interest and usury, — the statutes to which the former decision declared these transactions were offensive, — the enactment intervenes, and declares that, as to past or future transactions, they must not be so regarded. Inform and words, the enactment is not directed as a mandate to the courts, but it is without force or meaning, unless the courts deparo from the former construction of the statute, and yield obedience to it. It is, of consequence, that which is known as an “expository act.” Of such statutes it is said by Judge Cooley: “As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. To declare what the law is, or has been, is a judicial power ; to declare what the law shall be, is legislative. One of the-fundamental principles of all onr governments is that the legislative power shall be separate from the judicial. If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statutes, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative, judgment.” — Cooley, Const. Lim., 114. In Endlich on Building Associations (2d ed. § 43) it is said : “An expository statute, which is substantially in the nature of a mandate to the courts to construe and apply a former law, not according to judicial, but according to legislative, judgment, is inoperative, and cannot control the courts in interpreting the law and declaring what it is. The making of statutory laws, and their exposition and application to cases as they arise, are clearly and distinctly two different*functions. The former is allotted to the legislature ; the. latter, to the courts. Such retroactive and expository efficacy cannot be conceded to any law. When, therefore, a general statute, under which charters are granted to building associations, has received judicial interpretation as to the nature of the powers conferred, it is incompetent for the legislature to change that settled interpretation by enactment; for the legislature has no power to direct the judiciary in the interpretation of the acts previously passed, or to require it to change the construction already put upon them. Doubts upon previous statutes may be explained by legislative enactment, but no new interpretation arbitrarily forced upon the judiciary, for this would be the substitution of the language and meaning of the one for the other.” Several decisions of the supreme court of Pennsylvania are cited by the author, and, of them, the original and leading case is that of Reiser v. Association, 39 Pa. St. 137, in which an enactment similar to the one before us was the subject of decision. The transactions of the association bore a resemblance to the present transactions, and had been declared usurious by two decisions of the supreme court. Subsequently, the legislature declared that the intent of the former legislative acts, which had been judicially construed, was that the transactions “should not be deemed usurious,” and that the nominal principal and interest “may be enforced by proceedings on the securities.” Having analyzed and commented upon this act and the transactions, the court said : “Here, then, is the question raised for our consideration : Had the legislature of 1859 any constitutional authority to direct the judieiary department how it should interpret the act of 1850 and its supplements, authorizing the incorporation of such associations as this, and to require it to change the interpretation which it had already put upon those acts, and thus change the legal effect of contracts previously madev under them ? We are constrained to answer this question in the negative. * * * Leaving out unnecessary words of the act, it declares that the true • intent and meaning of the act of 1850 is that this class of associations may, besides legal interest, take premiums on their loans without transgressing the usury laws. It is, therefore, in ita very terms, an expository act. It is an interpretation by one legislature of a statute written by another legislature nine years before, and therefore an adjudication of the private rights which have arisen under it. And yet the former legislature said xiothing like this, and nothing from which this could be inferred. The legislature have certainly no such authority over us as to change the laws of language. If given language does not express a given meaning, they may give us another language that does ; but this will not change the meaning of the former language. In the vex*y nature of language, that is impossible. It is with and by virtue of the new expressions that we get the new meaning ; and, the meaning of the law being the law itself, the law can be xxo older than the" effectual expression of it. We speak, of course, only of statixte laws ; for customaxy or common law must be in actual operation before it can be authoritatively ascertained and expressed.” In that case, as in this, the insistaxxce of counsel for the asso-, ciation was that the act only repealed the usury law as to the associations referred to ; but the court said : “We should violate the plainest principles of interpretation if we should treat this clause as expressing the law that, in favor of these associations, the usury laws are abrogated. It expresses no such thing; and the act of 1859 cannot change its nature. Arbitrary interpretation is no interpretation at all, but only the sxxbstitution of one man’s language and meaning in place of the language and meaning of another. True interpretation is the ascertainment of another’s meaning, from his expressions, not from their thoughts and wishes. We have no expressions in the act of 1850 to justify the interpretation put upon it by the act of 1859. Yet, we understand the legislatux-e of 1859 is directing us to adopt this interpretation, and, therefore, to abandon the interpretation which the judiciary department of the government has declared to be the true one, and to decide according to the act of 1859 the private rights which have arisen under the act of 1850. This we cannot do.” As we have said, in form and words the enactment is not directed as a mandate to the courts, nor was such the form or words of the Pennsylvania enactment. The wox'ds of the present enactment, as before recited, are that “premiums, fines, or stock heretofore taken to represent premiums for loans made by any building and loan association doing business in this State shall not be treated as interest, nor render such associations amenable to the laws relating thereto,” etc. The difference in the phraseology of the two enactments is that the Pennsylvania act declared the true intent of the former acts was that the premiums ‘‘should not be deemed usurious.” The purpose of each enactment, and the operation and effect of each, if a valid exercise of legislative power, are the exposition by the legislature of statutes, which it does not repeal or change, but leaves in force, and the compulsion of the courts, in the future, to adopt that construction. The operative words of the enactment are that any premiums, fines, or stock heretofore taken and hereafter taken to represent premiums for loans shall not be treated as interest, nor render the association amenable to the laws relating thereto, followed by the declaration that they are collectible by law. To whom is addressed the prohibition from treating them as interest, rendering the association amenable to the laws relating thereto? The prohibition is directed to, and rests upon, the courts, not upon the parties to the transaction. Read in the light of its history, coming in but a- short time after the announcement of the decision in the Falls Case, it is but a mandate to the courts to depart from that decision, and accept the legislative exposition of the nature or character and obligation of these transactions. We are constrained to declare that, so far as the enactment relates to past transactions, the legislature exceeded its powers, and assumed power the constitution commits to the judiciary exclusively.—Carleton v. Goodwin’s Ex’r, 41 Ala. 153; Insurance Co. v. Boykin, 38 Ala. 510; Greenough v. Greenough, 11 Pa. St. 489, 51 Am. Dec. 567; People v. Board of Sup’rs of City and County of New York, 16 N. Y. 424; Haley v. City of Philadelphia, 68 Pa. St. 45, 8 Am. Rep. 153; Titusville Iron Works v. Keystone Oil Co., 122 Pa. St. 627, 15 Atl. 917, and 1 Lawy. Rep. Ann. 361.

The further insistance of the appellant is that legalizing past transactions — the purging from the taint of usury the particular transactions to which the fifth section refers — is not a subject expressed in the title of the act of which it forms a part, and is offensive, therefore, to the clause of section 2, Art. IV, of the constitution, declaring, with exceptions it is not necessary to repeat, that “each law shall contain but one subject, which" shall be clearly expressed in the title.” The title of the act is of rather peculiar construction. First, as is more usual, general words are employed to express the subject, — “To regulate the business of building and loan associations in this State.” These general words are succeeded by an abstract or catalogue of the contents of the act, expressive of the matter of each section (except the repealing clause of laws in conflict -with the act), descending to the section declaring that the act should take effect immediately on its passage and approval. The part or clause of the title to which the fifth section must.be referred — for there is no other to which it can be referred — reads: “Defining premiums, fines and stock taken to represent premiums.” The constitution does not contemplate a multiplicity of titles ; it contemplates but one title, and leaves the form which may be given it to legislative discretion. It may be expressed in general words, or it may be a brief statement of the subject, or it may be an index to, or an abstract of, the contents of the act. The constitution is satisfied if the act has but one general subject, and that is fairly indicated by the title.—Cooley, Const. Lim. 172; Ex parte Pollard, 40 Ala. 98; Ballentyne v. Wickersham, 75 Ala. 533; State v. Rogers, 107 Ala. 444.

The purposes of the constitutional requirement must be borne steadily in mind, when it becomes necessary to determine whether there has been législative observance of it. The exposition of these purposes by Judge Cooley is accepted, we believe, in all the States in which a like limitation prevails. They are : “First, to prevent ‘hodgepodge’ or ‘logrolling’ legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles give no intimation, and which might, therefore, be overlooked, and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” — Cooley, Const. Lim., 172. No one of these purposes is of more or less importance than the other. The mischief of hodgepodge legislation, — the inclusion in one act of matters or subjects “of a very heterogeneous nature,”— which may mislead and surprise the good faith of the law-making body ; or logrolling legislation, — intended to enlist varied, and, it may be, hostile, interests, in support of the proposed act, — would have been avoided if the constitutional limitation had gone no further than the requisition that “each law shall contain but one subject.” The unity of subject is an indispensable element of legislative acts; but it is not the only element; the subject must be “clearly expressed in its title.” The purpose of this requisition is, as expressed in the second proposition of the exposition of Judge Cooley, “to prevent surprise or fraud upon the legislature by means of provisions in bill of which the title gives no intimation, and which might, therefore, be overlooked, and carelessly and unintentionally adopted.” The third proposition must be deemed, and by all authority is deemed, of equal importance, — “to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they so desire.” When there is fair expression of the subject in the title, all matters reasonably connected with it, and all proper agencies or instrumentalities, or measures, which will or may facilitate its accomplishment, are proper to be incorporated in the act, and, as usually said, are cognate or germane to the title. But, as was said in Astor v. Railway Co., 113 N. Y. 110, 20 N. E. Rep. 598, “The title must be such, at least, as fairly to support or give a clew to the subject dealt with in the act, and, unless it comes up to this standard, it falls below the constitutional requirement.” The future, and not the past, is the ordinary, usual field and scope of the legislation. “Nova constitutio futuris forman imponere debet, non praeteritis,” — as translated by Mr. Broom, “A legislative enactment ought to be prospective, not retrospective, in its operation,” — is the maxim of the common law. Prospective laws — laws looking to and operating in the future — are the rule ; retrospective laws, looking backward, are exceptions. — Wade on Betroactive Laws, § 1. Because the future, not the past, is the usual field and scope of operation, comes the general rule that, by construction, retroactive or retrospective operation will not be given a statute, unless its terms show clearly the legislative intention that it should have such operation.—Cooley, Const. Lim., 455; Dash v. Van Kleek, 7 Johns. 477, 5 Am. Dec. 291; Perkins v. Perkins, 7 Conn. 558, 18 Am. Dec. 120; Baldwin v. City of Newark, 38 N. J. Law, 158.

The intent that this section shall operate retrospectively is clearly expressed in the section itself, rendering it, as we have already said, an expository act, and a usurpation of judicial power. Is the intent expressed in the title? Does the title fairly indicate that such is the operation of the section? Does it fairly suggest or give a clew that such is the legislative intention? The general words - employed as expressive of the subject, “to regulate the business of building and loan association in this State,” if dissociated from the abstract or catalogue. of the contents of the act immediately follbwing them, - are Of a very wide signification. They belong to a class of words, of .frequent use in the title of legislative enactments, such as “to provide,” “alter,” “ under take,” whichmay mislead the legislature and the public.-Ordronaux, Const. Leg. 591. If we dissociate these from the succeeding words, “defining premiums, fines, and stock taken to represent premiums,” to which this section must be referred, they are not capable of a construction which would comprehend the legalization of past transactions of the association, and, of consequence, a retrospective operation to the section. In Brunswick v. Mayor, etc., 51 Ga. 639, the legislature had passed- an act the title of which was, “To consolidate and amend the several acts incorporating the city of Brunswick, and for other purposes therein mentioned and it contained a provision to make valid and confirm “all the ordinances of the mayor and city council of the city of Brunswick heretofore passed, and not in conflict with the constitution of the State of Georgia or of the United States.” It was held that it was just such legislation the constitution intended to prohibit when it excluded more than one subject matter from being embraced in the same law. We quote, as not inappropriate to the question we are considering, some of the observations of the court: “Did, the General Assembly understand, when the act to consolidate and amend the several acts incorporating the city of Brunswick was passed, that the other subject-matter embraced in it, of confirming and making valid all the acts and ordinances of the mayor and city council of Brunswick, was also made a part of the law ? Did the General Assembly have before them these ordinances which were confirmed and made valid by that act ? Did they know and understand what were the several provisions of these ordinances ? In President, etc., of Lockport v. Gaylord, 61 Ill. 279, the legislature passed an act entitled “An act to amend the charter of the village of Lockport, passed February 12th, A. D., 1853,”- the sixth section of which was as follows: “That the appropriations made by the president and trustees, and orders drawn by the clerk in February, A. D. 1867, be, and the same are hereby, fully legalized in all respects.” The court said : “We do not-perceive how the sixth section can be regarded as germane to the subjects expressed in the title. The legalization of unauthorized acts of the corporation cannot be considered to be amendatory of its charter. The sixth section does not profess to amend the original act of incorporation, or define the powers to be exercised by the corporation in the future. Its only possible effect is to benefit individuals who may happen to be the holders of the certificates mentioned. The object of the sixth section is not expressed in the title of the act, and w,e must hold that it was passed in violation of the constitution, and is therefore void.” And, in the subsequent case,—Snell v. City of Chicago, 133 Ill. 413, 24 N. E. Rep. 532,—the same court held that the legalization of unauthorized acts was not germane to the subject expressed in the title of “An act to incorporate the Northwestern Plank-Road Company.” There are statutes which may be enacted having gene ’ . titles, and which may not by their terms show ,rly the intent that they are to operate retrospectively. Remedial statutes, in regulation of judicial proceedings or in relation to the competency of witnesses, are examples. And there may be “curative,” or as they are sometimes termed “healing,” statutes, the subject being expressed in general terms, and may satisfy the requirement of the constitution. But, when it is proposed by an act like the present to deal with existing contracts and liabilities, there should be in the title some expression of that intention, — some indication that such is the intent, — or the purposes of the constitutional requirement are not satisfied. The law-making body, and the community at large, recognize and repose with confidence upon the idea that prospective laws — the future, and not the past — are the ordinary, usual field and scope of legislation. If there are no words in the title fairly, reasonably indicating that the act is retrospective, — that it is exceptional, — “surprise or fraud upon the legislature” cannot be prevented. Nor will the people be apprised, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, affording them opportunity of being heard thereon, if they desire, by petition or otherwise. The usual publication of the subjects of legislative consideration, during the sitting of the General Assembly, is an announcement of the titles of bills introduced, or memoranda of other matters, generally brief. It is to this publication the community at large look for information, and to the great body of the people it is the only accessible source of information. Let the title be read, and what words employed will indicate, fairly and reasonably construed, that retrospective legislation is embodied in the act, — that it was intended to cure or heal the infirmities of the past transactions of these associations ? It would defeat all the purposes of the requirement of the constitution, that the “subject shall be expressed in the title.” We are not sitting in judgment to control the legislature in respect to the form or mode in which titles of enactments shall be expressed. Much must be left to legislative discretion, with which there cannot be judicial interference. But, if a title does not fairly and reasonably express the subject of the act, — if it be misleading and deceptive, — the constitution compels its condemnation, and such, in our judgment, is the character of this title, in so far as the past transactions of the associations are attempted to be legalized.

There are several objections taken to the validity of the enactment, some of which, in relation to the title, if well taken, it may be, would annul it in its entirety; but we have not deemed it necessary to consider them, preferring, as- all the necessities of the case are met, to confine ourselves to the particular questions we have considered. The chancellor, in the decree rendered, proceeded on the theory of the validity of the enactment, and that it had legalized the past transactions of the association, removing them from the influence of the Falls Case. For the reasons given, in that conclusion he erred; the error compelling a reversal of the decree-: The mode of computing the account between the parties is indicated in the opinion in the Falls Case, and must be observed.

Reversed and remanded.