
    FINANCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner, v. BURLEIGH HOUSE, INC., Respondent.
    No. 46797.
    Supreme Court of Florida.
    July 21, 1976.
    Rehearing Denied Sept. 30, 1976.
    Robert Orseck of Podhurst, Orseck & Parks and Sam Daniels, Miami, for petitioner.
    Richard L. Lapidus of Lapidus & Hollander, Miami, for respondent.
   ADKINS, Justice.

Certiorari was granted in this cause to review the decision of the District Court of Appeal, Third District (305 So.2d 59) on grounds of direct conflict with a prior decision of this Court. It now appears that the writ was improvidently issued.

Relying upon Pinkerton-Hays Lumber Company v. Pope, 127 So.2d 441 (Fla.1961), petitioner contends that the District Court of Appeal attributed to Spinney v. Winter Park Bldg. & Loan Ass’n, 120 Fla. 453, 162 So. 899 (1935) a patently erroneous and unfounded principle of law. This is petitioner’s strongest ground for jurisdiction.

Pinkerton-Hays Lumber Company v. Pope, supra, does not suggest that we take jurisdiction because we disagree with the result of the District Court of Appeal’s decision. In this case we said:

“For a District Court of Appeal to accept a decision of this court as controling [sic] precedent, and then to attribute to that decision a patently erroneous and unfounded principal [sic] of law, is to create a ‘real and embarrassing conflict of opinion and authority’ as that phrase was used in the case of Ansin v. Thurston, Fla., 101 So.2d 808, 811. It was to resolve conflicts in cases such as this that Article V, Section 4 of the Constitution granted to this court jurisdiction to review by certiorari decisions of the district courts of appeal.” 127 So.2d at 443.

Spinney v. Winter Park Bldg. & Loan Ass’n, supra, held that the exemptions prescribed in Section 6192, C.G.L. (1927), later Fla.Stat. § 665.161, F.S.A. (1967), is applicable to a state building and loan association, saying:

“The reason behind this legislative enactment is sound.
“A building and loan association is a sort of mutual benefit association. Each of the stockholders are assumed also to be borrowers.
“[T]he association may either make loans to its members who shall bid the highest premiums for priority or the association may enter into an agreement in writing for the given premiums to be paid by the borrower, in addition to the interest, which premium may be payable all at one time or in installments. .
“And so it is that one subscribes for stock for the very purpose of being eligible to become a borrower from the fund which he helps to create by the payment of his stock subscription. The stockholder of the building and loan association is recipient pro tanto of such benefits as may accrue from the contract which he executes with the association as well as from the contracts which all other stockholders execute with the association. This being true, the Legislature has lifted the ban of usury to such an extent as to allow the stockholders to contract more liberally between themselves and within the organization than could lawfully be accomplished otherwise.” (Emphasis supplied.) 162 So. at 903.

In considering jurisdiction under the principles enunciated in Pinkerton-Hays Lumber Company v. Pope, supra, we should first determine whether the District Court of Appeal in the instant case (Financial Fed. Sav. & Loan Ass’n v. Burleigh House, Inc., 305 So.2d 59 (Fla.App.3d 1974)) accepted the Spinney case as controlling precedent. The District Court of Appeal in its opinion made the following reference to Spinney:

“Financial Federal further argues hereinunder that if it cannot rely on the legislative changes effective June 2,1969, then it is exempt from the usury penalties by .virtue of Fla.Stat. §§ 665.161 and 665.40. We cannot agree.
“In Spinney v. Winter Park Building and Loan Association, 120 Fla. 453, 162 So. 899 (1935) the Florida Supreme Court flatly held that the usury exemption provided for by Fla.Stat. § 665.161 applies only to domestic associations and not to foreign associations such as the defendant Financial Federal. Fla.Stat. § 665.40 entitles Federal savings and loan associations to the same exemptions from taxation as provided by law for domestic associations, not from the usury statutes. Therefore, we conclude that the defendant in the case sub judice is not exempt from the usury statutes.” 305 So.2d at 62.

The court plainly said Spinney was not a controlling precedent for petitioner herein because the opinions related solely to domestic associations. Considering the reasoning of the court in Spinney as quoted above, it is apparent that petitioner herein could not have used the prior case as precedent for its position on appeal. This was all the appellate court held. The District Court of Appeal in- the instant case reasoned that Fla.Stat. § 665.40 F.S.A., specifically included federal savings and loan associations in the exemption from taxation provided for domestic associations. Having drawn this distinction on tax exemptions, the District Court of Appeal held that petitioner herein was not exempt from the usury statute. This was a matter of statutory construction and a case of first impression.

The District Court of Appeal in the instant case did not attribute to Spinney “a patently erroneous and unfounded principle of law.” Nor was there any “real and embarrassing conflict of opinion and authority.” In the absence of “real and embarrassing conflict,” we will not extend our jurisdiction to the point of substituting our judgment on a question of law for the judgment of a District Court of Appeal having final appellate jurisdiction.

The writ of certiorari is discharged.

It is so ordered.

ROBERTS, BOYD and HATCHETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

OVERTON, C. J., and SUNDBERG, J., dissent and concur with ENGLAND, J.

ENGLAND, Justice

(dissenting).

I respectfully dissent. Under the doctrine announced in Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441 (Fla.1961), there is a real and embarrassing direct conflict between the decision below and our decision in Spinney v. Winter Park Bldg. & Loan Ass’n, 120 Fla. 453, 162 So. 899 (1935). As a result, we have jurisdiction for review under Article V, Section 3(b)(3) of the Florida Constitution.

The point of law in this case is whether a federal savings and loan association is exempt from Florida’s usury statutes. In Spinney we held that a statutory exemption applies to domestic associations, but we did not discuss the status of foreign (including federal) associations. Nonetheless, the district court below attributed to that decision a determination that the exemption is not available to non-domestic associations. Building on the lack of exemption ascribed to Spinney, and brushing aside a tax exemption statute as inapplicable to usury law questions, the district court “therefore” concluded that Financial Federal was not exempt from the usury laws. If the district court did not rely on Spinney as a controlling precedent (as the majority suggests), I fail to discern from its opinion any rational basis on which it resolved the usury exemption issue against Financial Federal.

In my opinion, the district court erroneously attributed a legal conclusion to Spinney which was not at issue there or discussed in the opinion, and then the district court relied on that principle of law as controlling for the precise issue before it. Under these circumstances, I believe that Pinkerton-Hays Lumber demands that we exercise our jurisdiction to set matters straight.

As I would reach the merits of this case, I take this occasion to express my views on them. The essential facts concerning financial arrangements between Burleigh House and Financial Federal, as set out in the district court’s opinion, are not important to the legal issue. The question we have for determination is whether non-domestic associations were exempt from Florida’s usury statute in early 1969. The specific statutes which command our attention are Sections 665.01, 665.161, and 665.18, Florida Statutes (1967).

Section 665.01 defines the term “building and loan association” to include both domestic and foreign savings and loan associations. Sections 665.161 and 665.18 appear to create exemptions from the usury laws for all such associations, the former broadly and the latter more restrictively for nonpayment penalties provided for in an association’s by-laws. We are asked to determine whether the exemptions are as broad as they appear to be, and why the Legislature created two exemptions in the same regulatory code.

Burleigh House essentially argues from the evolution of the statutory exemptions that the first exemption applies only to foreign associations, and as to those it is available only for associations which limit their loans to members. Since federal associations are not so restricted, Burleigh House says that the usury laws apply. This argument traces the Legislature’s original intention of exempting only thrift institutions whose internal structures served as a, check on the interest rates which could be charged to members, and shows that this intent has not been altered by subsequent statutory amendments.

Financial Federal contends that the resolution of this dispute can be ascertained from the plain language of the statutes involved, which purport to exempt all savings and loan associations, and from the logic of the proposition that the complicated provisions of Chapter 665 were not enacted to regulate the few existing financial institutions which in recent times have operated on the pure building society plan as it was known at the turn of the century. Since we are most apt to ascertain a correct understanding of the 1967 statutes by a reconciliation of logic, language and history, I would begin my analysis with the pertinent legislative history.

From 1893 to 1963, foreign “building and loan associations” were governed by a statutory scheme separate from that which regulated domestic associations. Domestic associations were then exempt from usury laws under a provision in the usury statute available to loans made in compliance with all provisions of the domestic code. Foreign associations were then exempt under a provision in the foreign association regulatory code. The term “building and loan association” as applied to foreign institutions, however, was limited to those doing “business on the building society plan, viz., loaning its funds to its members only.” The general usury exemption for domestic associations was repealed in 1909, but reappeared in 1915 as a provision of the domestic association code. This was the provision which was considered in Spinney, and which in 1967 appeared as Section 665.18.

In 1963 the chapter regulating foreign associations was repealed, except for two provisions which were merged into the domestic association code, Chapter 665. One of these was the usury exemption, which was transferred to Chapter 665 and renumbered as Section 665.161. The definition of foreign associations which had limited their loans to members, former Section 668.05, was not one of the two transferred.

It seems to me apparent that in 1963 the Legislature intended to eliminate an outdated system of dual regulation and endeavored to erect a single, integrated regulatory structure for both domestic and foreign thrift institutions. This would lead me to conclude that the reference to “any” association in the code’s general usury exemption, Section 665.161, means precisely that, despite its origin as a limited exemption for foreign associations loaning funds to their members.

The question Burleigh House poses is why anyone should ascribe a different meaning to this exemption as of 1963 than the same language had before that time, considering that the domestic exemption was retained in its same form as well. My answer is that there is no purpose to be served by ascribing to the present regulatory scheme a set of historical connotations which, while once significant, have virtually disappeared, and that an explanation for the dual exemptions is readily apparent. Given the variant history of the foreign and domestic usury exemptions, the Legislature may well have concluded that a repeal of the foreign exemption (Section 668.09) would be viewed as an elimination of the foreign association exemption instead of a matter of regulatory simplification. The Legislature may also have viewed the limited exemption in Section 665.18 for by-law penalties as too restrictive for modern domestic savings institutions.

I conclude, therefore, that under the 1967 statutes, the usury exemptions contained in Sections 665.161 and 665.18 applied with equal force to domestic and foreign savings and loan institutions. This conclusion is consistent with the obligation of courts to view apparent legislative inconsistencies in a manner which will avoid questions of constitutionality. The district court’s decision that domestic associations were exempt from the usury laws while foreign institutions with virtually identical powers were not, raises a serious question of whether the statutes creating the distinction are constitutional under the supremacy clause of the Federal constitution.

For these reasons, I would reverse the decision of the district court.

OVERTON, C. J., and SUNDBERG, J., concur. 
      
      . The district court states that “the Florida Supreme Court flatly held that the usury exemption provided for by Fla.Stat. § 665.161 applies only to domestic associations and not to foreign associations . . . .” 305 So.2d at 62.
     
      
      . Chapter 69-39, Laws of Florida, substantially revised the statutes involved in this proceeding. Under Section 665.53, Fla.Stat. (1969), none of the changes were given retroactive effect. The district court held, and both parties now concede for purposes of review, that this controversy is governed by prior law rather than any statutes which became effective on June 2, 1969.
     
      
      . 12 U.S.C. § 1464(b)(2), (c) (1969).
     
      
      . Chapter 4022, § 2, Laws of Florida (1891), providing that “loans made by building and loan and other mutual benefit associations, to its members, when made and conducted under the provisions of Chapter 3709, Laws of Florida, approved May 31, 1887, and acts amendato-ry thereof and such other acts as may hereafter be passed . . shall not be considered usurious. ...” See Section 687.031, Fla. Stat. (1961).
     
      
      . Chapter 4158, § 8, Laws of Florida (1893), carried forward as Section 668.09, Fla.Stat. (1961).
     
      
      . Chapter 4158, § 4, Laws of Florida (1893), carried forward as Section 668.05, Fla.Stat. (1961). In Skinner v. Southern Home Bldg. & Loan Ass’n, 46 Fla. 547, 35 So. 67 (1903), we held that foreign associations were subject to the further restriction, which then pertained to domestic associations, that loans be made on the basis of competitive bidding for no more than the value of a member’s share.
     
      
      . Chapter 5960, § 2, Laws of Florida (1909).
     
      
      . Chapter 6971, § 8, Laws of Florida (1915). This exemption was retained during the general revisions of the domestic building and loan association code in 1925 and 1927. '
     
      
      . Chapter 63-318, Laws of Florida.
     
      
      . I note that federal savings and loan associations did not come into existence until 1933.
     
      
      . See Michigan National Bank v. Michigan, 365 U.S. 467, 81 S.Ct. 659, 5 L.Ed.2d 710 (1961); United States v. Massachusetts Tax Comm’n, 481 F.2d 963 (1st Cir. 1973).
     