
    FARMERS’ BANK OF FAYETTEVILLE against HALE.
    
      Supreme Court, Fourth Department;
    
    
      General Term, March, 1874.
    Usury.—Penalty.—Forfeiture of Interest.—Inconsistent Statutes.
    By the act of 1870 (1 Laws of 1870, ch., 163, 7 13dm,. Stat., 663), the usury law of this State is in effect repealed as to State banks organized-under the banking law of 1838.
    The usury law' (1 li. 8. 772, § 5), declared that all securities, &c., yvhereon there should be reserved a greater rate of interest than that above described [7 per cent.] should be void. The act of 1870, as to banking associations, provided that they might take seven per cent, in advance, and declared that their knowingly receiving a greater rate should be held and adjudged a forfeiture of the entire rate of interest ; and repealed all inconsistent provisions. Held, that the forfeiture of the whole debt was inconsistent with the forfeiture of interest merely,, and was repealed thereby in respect to such banks as lenders.
    
      Such a hank, by receiving more than seven per cent, interest, only* forfeits the entire interest, and may recover the principal.
    Plaintiffs sued Mark Hale, as the maker, and Hezekiah Cass, as the indorser of a promissory note for one thousand three hundred and fifty dollars, payable at the plaintiff’s bank. The note was dated October 18, 1872, and payable one month after date.
    The plaintiffs were an association organized under the general banking law of this State, enacted in 1838.
    The parties agreed upon, and submitted to the court the following facts. That Cass had been duly charged as indorser, and both the defendants were liable to the plaintiff for the amount of the note, unless the note was void for usury.
    The note was an accommodation note indorsed by Cass, without consideration, and Hale, the maker, obtained from plaintiffs a loan thereupon, on usury, namely : The sum of thirteen dollars and fifty cents, in addition to legal interest, the payment of which was imposed by the plaintiffs on Hale, as the condition of their making the loan or discount.
    At circuit, judgment was given for plaintiffs for the amount of the loan and costs, for the reasons assigned in the following opinion.
    The defendants appealed.
    
      Lyman & James, for defendants, appellants.
    I. The law has not made any distinction between this and other defenses, and the court can make none (Catlin v. Gunter, 11 N. Y. [1 Kern.], 375 ; Potter's Dwarris, 148, and note 2, same page; Sedg. Cons. and Stat. Law, 336, 337). Hence, there is no reason for leaning toward the construction which repeals the usury law.
    II. The rate allowed to be taken in advance by banking associations was six per cent. (2 Rev. Stat., 535, § 98, 5 ed.) When not taken in advance, seven per cent. (3 Rev. Stat., 72, §§ 1, 2, 5 ed.). If such associations charged a greater rate, the debt was rendered void (3 Rev. Stat., 73, § 5, 5 ed.; Bank of Salina v. Alvord, 31 N. Y., 473). In addition the person receiving the same was liable in an action to refund the amount taken in excess of lawful rate, if brought within one year (3 Rev. Stat., 72, § 3, 5 ed.). The changes effected by Laws of 1870, ch. 163, allow State banks to charge in advance at seven per cent. One paying in excess may recover back twice the amount of interest paid, if the action is brought within two years (Laws of 1870, ch. 163, § 1). Thus section 98, 2 Rev. Stat., 535, 5 ed., is made to read: Banking associations may charge and receive seven per cent, in advance on loans of' money ; and section 3, 3 Rev. Stat., 72, to read: If a greater rate is charged and received, the person paying the same may recover back twice the amount of interest paid if the action is brought within two years. And section 5, 3 Rev. Stat., 73, 5 ed., making void the debt . if a greater, rate is charged, remains unchanged and still in force, by Laws of 1870, ch. 163. But it is ■claimed by the respondent that Laws of 1870, ch. 163, repeals sections 3 and 5, 3 Rev. Stat., 72, 73, and section 98, 2 Rev. Stat., 535, 5 ed. The appellants admit that the act of 1870 repeals section 98, and that it modifies section 3 so far as it relates to State banking associations, but claim that it does not repeal section 5. This leads us to an examination of the respective statutes, and the construction to be put upon them. The first question that arises is : What, if any, is the intent of the legislature as expressed in the statute of 1870, chapter 163. The intent is expressed in section 2 of the act, where it is “ declared that the true intent and meaning of this act is to place the banking associations organized and doing business as aforesaid (under the act of 1838), on an equality in the particulars in this act referred to, with the national banks organized under the act of Congress entitled or approved June 3, 1864.” Section 30 in the national banking act is referred to, which allows banks to charge seven per cent, in advance, and if excessive interest is charged, twice the amount may be recoved back if the action is brought within two years, and the two sections of the respective acts are substantially alike (13 U. S. Stat. at L., 9, § 30; Laws of 1870, ch. 163, § 1). The legislative intent expressed in section 2 must control in construing this statute (Holmes v. Carley, 31 N. Y., 290, and cases cited; Potter's Dwarris Stat., 175, 110, 179, 181, 182, 236, 144; Vattel's Rules, No. 27 ; United States v. Palmer, 3 Wheat., 631; Story Con. of L., 10 ; 1 Kent Com., 461 ; Ogden v. Strong, 2 Paine, 584). The intent of the legislature is expressed in section 2. chapter 163, which says, “It is hereby declared that the true intent and meaning of this act is to place banking associations organized, &c., on an equality in the particulars in this act referred to with the national banks.” The “ particulars in that act referred to,” are allowing State banks to charge and receive on loans of money seven per cent, in advance, instead of six per cent. That if an excess of interest was charged, &e., the person paying the same might recover back twice the amount of interest paid, instead of the amount paid in excess of six per cent., and that the action therefor might be brought within two years instead of one year. The legislature having declared the intent, the act does not repeal in express terms section 5, 3 Rev. Stat., 73, making void the debt if excessive interest is charged; and hence section 5 is not repealed unless by implication, which is not favored in law (Sedg. Cons. and Stat. Law, 127, and cases cited ; Potter Dwarris on Stat., 154; Theriat v. Hart, 2 Hill, 380, and note ; Williams v. Potter, 2 Barb., 316, 320). A mere change of phraseology will not alter the law (Theriat v. Hart, above; Matter of Brown, 21 Wend., 316, 319 ; Potter's 
      
      Dwarris on Stat., 181; Williams v. Pritchard, 4 Term R., 2, 4; Williams v. Williams, 8 N. Y. [4 Seld.], 532, 533). Here the expressed intent was, not to repeal the former statute in tofo, but to place State banks ‘on an equality in the particulars in this act referred to with the national banks,”-&c. All acts in pari materia are to be taken together as if they were one law (Potter's Dwarris on Stat. 189, and note 9 ; 1 Kent Com. 463, 464, orig. page). The cause or reason of enacting the statute of 1870 was this: Rational banks were allowed to charge seven per cent, interest in advance on. loans of money, and State banks only six per cent., making a difference of one per cent, in favor of the national banks, and to allow State banks to charge seven per cent, interest in advance, and thus gain one per cent, on the loans, was the reason or cause of passing the act of 1870. And this is a safe rule for construction (Sedg. Cons. and Stat. Law. 239, Potter's Dwarris on Stat., 186 Id. 188; 1 Kent Com., 462, orig. page; Holmes v. Carley, 31 N. Y., 290, and cases cited). Atithe time of the passage of the act of J870, bankers-generally supposed that national banks were free from' the operations of our State usury laws ; although the courts and the bar who had examined the act of Congress, section 30, act Jnne 3, 1864 (13 Stat. at Large, 9), expressed different opinions in regard to it. The question how far national banks were controlled by State laws was then before the courts, and received an elaborate 'review in The National Bank v. Connor, 9 Wall. 362). But section 30 of the act prescribing the rates of interest for .banks formed thereunder, had not then come before the courts for them to determine whether they were free from the penalties of State usury laws. But whether national banks were or were not free from the penalties of State usury laws, was not of so much importance and anxiety to State banks, as the fact that those banks were allowed to charge and receive one per cent, interest in advance more than the State laws allowed State banks to do. It was not so much the penalty that the State banks wished to escape, as it was that they might be allowed to add the one per cent, additional interest in advance on their loans. It was the one per cent, additional interest-the State banks were after. And because the legislature allowed these banks to charge the much coveted one per cent, additional interest in advance, .they now'ask this court to say the legislature thereby repealed all the former provisions of the statute in regard to usury, so far as the same relates to these soulless banking institutions. There is no reason for giving this statute of 1870 such a liberal construction in favor of banking associations, and construing them so strictly against individuals. Since the passage of the act of 1870, section 30 of the national banking act of June 3, 1864, has been before the courts for adjudication, and it was held that they were not free from the penalties of State laws (First Nat. Bank of Whitehall v. Lamb, 50 N. Y., 95 ; In the matter of Wild, U. S. Circuit Court, Woodruff, J., 8 Albany Law Journal, 235, 236). And from this fact it may be urged that had this decision been made prior to 1870, that statute would not have been passed. That does not follow. If the State banks under those circumstances could have induced the legislature to grant them the right to charge seven per cent, in advance instead of six, they would have been Avilling that section 3, 3 Rev. Stat., 72, should have been changed so that the party paying excessive interest could recover back twice the amount within two years, instead the amount in excess of the legal rate in a year. But whether, they would or would not have asked, the legislature to pass the act of 1870 under those circumstances, does not change the intent of the legislature now that the act is passed ; and now that the. act is passed and in force, those banks are placed upon the same footing with national banks, which are—(1) National banks may charge and receive interest on loans of money in advance at the rate of seven per cent. (2) Any person paying a greater rate of interest, may recover back twice the amount if the action is brought within two years. (3) All loans, notes, &c., on which shall be reserved, or received, or taken any greater sum, &c., shall be void (§ 5, 3 Rev. Stat., 73, 5 ed.). The position of the court below, “that a legislative construction was given to the act of Congress, and such-construction adopted and incorporated in the legislative enactment,” &c., is unsound. A legislature cannot authoritatively interpret or declare what the law is or has been, but only what it shall be (Ogden v. Blackledge, 2 Cranch, 272; Ashley’s Case, 4 Pick, 23. There is no such inconsistency between the two statutes, that the latter is a repeal of the 'former. If there is an apparent inconsistency, such construction must be put upon them that both can stand if possible (Potter’s Dwarris on Stat., 189 ; Johnson v. Byrd, Hempstead, 434; Beals v. Hale, 4 How. U. S., 37; Parish of St. Clemens v. St. Andrews, 6 Mod., 287). When the intent can be collected from the statute itself, words may be modified, or supplied so as to obviate repugnancy or inconsistency with such intention (Quin v. O’Keefe, 10 Ir. C. L. R., 393). The change effected by the act of 1870 is in effect to make section 2 of 3 Rev. Stat., 72, to read, Twice the amount of interest paid, if brought within two years. And section 98 of 2 Rev. Stat., thus : Banking associations may charge seven per cent, interest in advance on loans of money. These two changes do not make two acts so far inconsistent with each other that section 5 above is thereby repealed (The King v. The Poor Law Comr., 6 A. & E., 7, 8, and cases above cited; Williams v. Pritchard, 4 D. & E., 2; Williams v. Williams 8 N. Y. [4 Seld.], 532, 533, and cases cited. If the act of 1870 repeals section 5 above, it also must repeal section 4, 3 Rev. Stat., 73, which allows the action to be brought within three years, if brought by the poor commissioners, &c. The general repealing clause: “And all acts and parts of acts inconsistent with the provisions hereof, are hereby repealed,”—does not repeal section 5. What are the “provisions hereof?” The provisions are, That State bank may charge seven per cent, interest in advance instead of six, as heretofore. ' That the party paying excessive interest may recover back twice the amount of interest paid if the action is brought within, two years, instead of the amount in excess of the legal rate if brought within one year. These are the only provisions of the act of 1870 ; and the provisions of the former statute making void the debt if excessive interest is charged, is not referred to either directly or indirectly. And solely because of these two changes, this court is asked to hold that the act of 1870 repeals section 5, 3 Rev. Stat., 73, 5 ed., making void the debt if an excessive rate of interest is charged and received for loans of money.
    The general law of the country is not altered or controlled by partial legislation, made without any special reference to it (Denton v. Manners, 4 Johns., 151). General words of a statute do not always extend to every case which falls literally within it (Cope v. Doherty, 2 De G. & J., 614; Minit v. Leman, 20 Beav., 269). The rule is, that wherever there is a particular enactment and a general enactment, and the latter taken in its most comprehensive sense would overrule the former, the particular enactment must prevail (Pretty v. Solly, 26 Beav., 610). This rule is well illustrated in the act of parliament which authorized individuals to inclose and embank portions of the soil under the river Thames, and declared that such land should be “free from all taxes and assessments whatsoever.” The land tax subsequently passed, by general words embraced all the land in the kingdom ; and the question which came before the. court was whether the land mentioned in the former act had been legally taxed, and it was held that the tax was illegal (Williams v. Pritchard, 4 D. & E., 2 ; Williams v. Williams, 8 N. Y. [4 Seld.], 532, 533, and cases there cited ; Denton v. Manners, 4 Jur. N. S., 151; Brown v. Wright, 1 Green, 240; Canal Co. v. Railroad Co., 4 Gill & J., 152).
    
      L. C. Gardner, for plaintiffs, respondents:
    I. The act of 1870 provides that the only penalty that can be imposed upon a bank organized under the laws of this State, for taking usury, is a forfeiture of the interest which the note or other evidence of debt'carries with it, and a recovery in case it is actually paid,' of twice the excess over seven per cent, interest.. The last clause of this statute states in substance that the legislature intended to place State banks upon the same basis, in this respect, with national banks. At the time this statute was enacted the legislature may have supposed that the penalties imposed upon national banks were less severe than those applicable, .under like circumstances, to individuals and to State banks. That the legislature may have misconstrued the meaning of an act of Congress, does not weaken this statute. The legislature intended.to do just what is stated in the first section of this law ; the reason ■ for their action is given in the second section, to wit: to place State and national banks upon the same basis in respect in said act named. By the same logic employed by Rapallo, J., in the First National Bank of Whitehall v. Lamb, 50 N. Y., 95, Congress cannot interfere with State laws in respect to that part of the penalty which allows a recovery of interest over seven per cent., or in respect to the time within which action may be brought to recover same ; arid so if a national bank receives more than the legal iñterest for the use or forbearance of money in this State, only the excess can be recovered by the borrower, and action must be brought within one year, the same as before the national banking law. Hence if defendant’s position is correct, that the second clause of the act of 1870 is controling, to. wit: that State and national banks are to occupy precisely the same position with regard to the particulars referred to therein, then this law is entirely nugatory. But even if it should be held that there was a change made by this statute of 1870, in the two incidental particulars named, still the construction contended for by the plaintiff would give but little effect to its provisions. Well established principles must govern the construction of this statute. 1. The whole act must be construed together (Potter’s Dwarris on Stat., 193). 2. Statutes are to be construed so as to give them full force and effect (Alder v. Mil. Pat. Brick Co., 13 Wis., 57; Case of Alton Woods, 1 Coke, 45 ; People v. Utica Ins. Co., 15 Johns., 358; Holmes v. Carley, 31 N. Y., 290; Leversee v. Reynolds, 13 Iowa, 310). 3. The purview of an act may be qualified or restricted by a proviso or saving clause ; this clause is only an exemption of some special thing out of the general things mentioned In the act, but a saving clause which is repugnant to the purview or body of the act, and could no! stand without rendering the act inconsistent and destructive of itself, is void (Potter’s Dwarris on Stat., 238 ; Sedg. on Stat., 60; 1 Black. Com., 88; 1 Kent Com., 462 ; Alton Wood Case, 1 Coke, 45 ; Walsingham’s Case, 2 Plowden, 565; Millford v. Elliott, 8 Taunt., 13; Dugan v. The Bridge Co., 27 Penn. State, (3 Casey) 303; Minis v. United States, 15 Pet., 423 ; Voorhees v. Bank of the United States, 10 Id., 471; Wayman v. Southard, 10 Wheat., 30). 4. A saving totally repugnant to the body of the act is void (1 Black. Com., 88). 5. “It is a general principle that a proviso or saving clause which is repugnant to the purview or body of the act is not to have effect (Dugan v. Bridge Co., supra). 6. A particular thing given by the preceding part of a statute shall not be taken away or- altered by any subsequent general words (Sedg. on Stat., 61; Stanton v. University of Oxford, 1 Jon., 26). 7. When any particular construction would lead to absurd consequences it is to be avoided (Commonwealth v. Kimball, 24 Pick., 370; Mayor of Jeffersonville v. Weems, 5 Ind., 547 ; Smith Com., 664).
    II. It is a legal right vested in the legislature to pass laws, to confer privileges and immunities, and to impose burdens, even though they may be unequal in their .operations and effects, limited only by the constitution (Seg. on Stat., 183, 185 ; Kirby v. Shaw, 7 Harris, Penn., 258 ; In the matter of Wilson, 4 City H. Rec., 47 ; People ex rel. De Forrest v. Denniston, 23 N. Y. 247; Bank of Chenango v. Brown, 26 Id., 467 ; Luke v. City of Brooklyn, 43 Barb., 54; Anonymous, 1 Code R., 49). “As to cases being decided on grounds'of policy or hardship, the idea has been repeatedly and vigorously condemned; the ground of public policy is a very unsafe one, it is best to adhere to the words used in the act of parliament (Sedg. on Stat. &c., 308 ; Dwarris on Stat. &c., 597).
    III. As there is nothing in this act expressing whether it was the intent to place State banks upon the same basis with national banks organized within this State, or upon the same basis with those national banks located where there is no rate of interest fixed by local laws, we may suppose the latter was intended when we take into consideration the fact that by a previous section of. the same act the legislature has declared “that the forfeiture should be limited to the-interest, Ac.,” which is the same penalty (First National Bank of Whitehall v. Lamb, above) prescribed by act of Congress for national banks taking usury in those States and territories where there are no usury laws ; especially does such a construction receive additional force, from the fact that otherwise the whole statute would be nugatory and void.
    By the statute of 1870, the legislature placed a construction upon the national banking law, and such a construction is entitled to consideration (Sedg. on Stat. &c., 488 ; Coutant v. The People, 11 Wend., 515; The People v. The Board of Supervisors, 16 N. Y., 424; Metropolitan Bank v. Van Dyke, 27 Id., 427; De Quindre v. Williams, 31 Ind., 444). The First National Bank of Whitehall v. Lamb (supra), was a decision upon a case tried before the statute of 1870, and therefore the decision was not influenced thereby.
   The Court affirmed the judgment appealed from, and adopted as the ground thereof, the opinion below which was as follows :

Hardin, J.

The conceded facts present for determination the single question involved in this action. Does the charge and payment of thirteen dollars and fifty cents in excess of seven per cent, as a condition of-the discount of the note mentioned in the complaint, render the note absolutely void in the hands of the plaintiff, or does it merely work a forfeiture of the entire interest which the note carries with it ?

To determine this question it is necessary to give a - construction to chapter 163 of the laws of this State, passed April 9, 1870.

No judicial construction of the statute was cited on the argument in this case.

But it is claimed in behalf of the defendants, that the" decision made by the court of appeals in First National Bank of Whitehall v. Lamb, 50 N. Y., 95, holding that no privilege or immunity from the usury laws of the State is conferred upon national banks by the act of Cotigress of 1864, and a contract for a loan made in this State with one of these organizations, by which it reserves a greater rate of interest than seven per cent, is void, places these institutions upon an equality with individuals, and subject to the general statute of this State in respect to usury ; that State associations like the plaintiff here áre on an equality with national banks organized under the act of Congress.

Such construction of chapter 163 gives but little effect to its provisions. Some of its provisions would be wholly without effect or significance. It is a cardinal rule to be observed in the construction of a statute, that full effect or force should be given to all' its provisions if possible (13 Wis., 57).

The first section in express terms confers authority upon such associations, “to take, receive, reserve and charge on every loan or discount made, or upon any note, bill of exchange,or other evidence of debt, interest at the rate of seven per cent. per. annum, and such interest may be taken m advance.”

It also expressly limits the forfeiture in case the violation of the authority conferred shall take place;

“It expressly declares that the “ knowingly taking a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note or other evidence of debt carries with it, or which ha,s been agreed to be paid thereon.” It therefore appears that the statute has declared and limited the consequences of taking a rate greater than aforesaid.

That such is the limitation of the forfeiture contained in the act of Congress was assumed by Rapallo, J., in delivering the opinion of the court in Bank v. Lamb, supra. The same words are used in the statute now under consideration, and the assumption of the court in respect to the extent of the forfeiture is therefore applicable and controlling here.

It must therefore be assumed that the first section confers upon the State associations the right to reserve seven per cent, interest, and limits and defines the forfeiture in case a “greater rate is received.”

This conclusion is strengthened by the subsequent provisions in section 2, in respect to repeal of other statutes. It declares that “ all acts and parts of acts inconsistent with the provisions hereof are hereby repealed.”

The provision of the general law declaring void all contracts when a greater rate than seven per cent, is reserved, manifestly is inconsistent with the provisions of the first section above quoted.

It therefore in express terms is repealed quo ad the associations organized like the plaintiff under the act of 1838. ,

So far, in the language already adverted to of the first section, “its true intent and meaning” are clear and definite; and privileges and immunities inconsistent with the provisions of the general law, are conferred upon State associations absolutely and without restrictions or qualifications in respect to any' other class or kind of institutions.

Following the power or authority given as aforesaid and the forfeiture declared in case of any violation thereof knowingly, it is provided that (1) “in case a greater rate of interest has been paid, the person, or persons paying the same or their legal representatives may recover back twice the amount of the interest thus paid from the associations taking or reserving the same; provided that such action is commenced within two years from the time the excess of interest is taken,” (2) but the purchase, discount or sale of a tona fide bill of exchange, note or other evidence of debt payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for collecting the same, in addition to the interest, shall, not be considered as taking or receiving a greater rate of interest than seven per cent, per annum.

These two particulars are found in the thirtieth sec- ‘ tion of the act of Congress. They are new in some respects in the statutory laws of this State. Before the legislature passed this enactment, the borrower could maintain an action to recover the excess paid if his action was commencéd within one year, and his right to recover terminated at the end of one year (1 R. S., § 3 ; Palen v. Johnson, 50 N. Y., 49).

The second particular being the same in respect to the purchase, discount or sale of a bona fide bill of ex- . change is a new permissive statutory provision, though it has been declared judicially that such purchase or discount was not usurious under the general statutes of the State in respect to usury (Lees’ Bank v. Walbridge, 19 N. Y., 135).

This provision declared permissible just what" the decisions had held was not prohibited.

Following the words given in' the two particulars already quoted assimilating the privileges of the two classes of institutions, are found, in the second section of the State act, these words“ It is hereby declared that the true intent and meaning of this act is to place the banking associations organized and doing business as aforesaid, on an equality in the particulars in this act referred to with the national banks organized under the act of-Congress entitled, &c.”

In' giving effect to these words of section 2, it must be borne in mind that it has been judicially determined by the highest court in this State,, that the act of Congress limiting the forfeiture to the interest has reference to the banks organized under the act in those States and territories where no rate is fixed by law. In other words, that certain national banks are by the act . of Congress authorized to charge seven per cent., and if they take or reserve more, the forfeiture is limited to such excessive interest, or twice that, amount if sued for within two years. Would it not be more reasonable to suppose the legislature (after conferring, as before shown, in express terms upon State institutions power to receive seven per cent, and providing that the forfeiture shouldbe of the excessive interest in case of violation), intended to place State institutions in that respect “ on an equality with the national banks organized under the act of Congress,”, that were by the act entitled to the same privilege and immunities as were expressly conferred by this act, than to suppose that by a declaration of the intent and meaning of the act the words of the first section were to be overthrown, so that no effect could be given to their express and clear scope ?

There are no words in the second section restricting the words “the national banks organized under the act of Congress” to the national banks located in their places of business in this State.

A construction which should apply these words so as to refer to banks located in States and territories where there are laws upon the subject of usury would find no more support from the words of the act, than would the construction which should apply these words to those national banks in States and territories where no rate is fixed by law.

It having been declared in Bank v. Lamb, supra, that two classes are referred to in the national act, it may be fairly regarded as an open question in respect to which class reference is made in the second section of the act here under consideration.

A construction is always to be preferred which shall give full .significance and effect to all the words of an enactment, over one which renders nugatory portions of the language employed (Potter’s Dwarris on Stat., 182 and note ; Beals v. Hale, 4 How. U. S., 37).

“If the king’s patent may be good to two intents then it shall be taken most beneficially to the king, but if it may be to one intent 'good and to one intent void, then it should be taken to that intent which makes the grant good and not that which makes it void ” (1 Coke, 45). The same rule applies to statutes (15 Johns., 358; 31 N. Y., 290 ; 8 Taunt., 13).

So too a proviso or saving clause which is repugnant to the body of the act is void (27 Penn. State, 303).

But suppose it be urged that the legislature assumed that all national banks had the privileges and immunities conferred by the first section of their enactment, in respect to State institutions, then may it not be replied with great force, that acting upon the assumption, a legislative constrnction was given to the act of Congress, and such construction adopted and incorporated in the legislative enactment and made applicable to the State associations %

Either view harmonizes the declaration in the second section with the antecedent language granting privileges to the State associations, and limiting the forfeiture to the interest in case of a violation of its permissive language.

If the reference in the second section as to national banks is to that class in States where the rate of interest is regulated, it is difficult to find in the same section any words limiting the reference to those of that class located in this State any more than to those located in the State of Illinois, where the rate of interest is ten per cent, by law.

It is essential to refer the words “ the national banks organized under the act of Congress” in the second section, to the class existing in States and territories where the rate is not limited, in order to give effect to the words limiting the forfeiture to the interest, otherwise they would be nugatory.

It was held in 24 Pick., 370, that a construction of a statute which would lead to absurd consequences should be avoided.

The first .section in clear terms declares that the knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid (to wit: seven per cent.) shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon.

The forfeiture is declared in specific language as to the plaintiff, a State association, and the expression of one forfeiture is by its clear terms an exclusion óf all others (Dudley v. Mayhew, 3 Comstock, 9 ; 50 N. Y., 49).

And as before shown, all acts inconsistent being repealed, so far as State associations are effected by them, and the repeal being absolute, quo ad such institutions, it follows that the plaintiff being a State association to which the act of 1870 applies, has upon the admitted facts forfeited the entire interest which the note in suit carries, and thirteen dollars and fifty cents agreed to be paid thereon in excess of seven per cent, per annum, and that the general provisions of the statutes of this State in respect to usury are repealed as to the plaintiff a State association.

Judgment ordered for the plaintiff.  