
    Philip Bandel vs. James W. Isaac.
    The 49lh section of the 3rd article of the Constitution says: “The rate of interest in this State, shall not exceed six per cent, per annum, and no higher rate shall Be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury.” Held:
    1st. That this section does not, of itself, make void, in whole, a contract demanding or exacting more than six per cent- interest; it merely fixes the legal rate of interest.
    2nd. That it is for the Legislature,, by forfeitures and penalties, to make the-contract void, either in whole or in part, as to it may seem best, and by penalties punish the party or parties, making such a contract.
    3rd. That .until the-Legislature shall, by law, provide the necessary forfeitures and penalties,-the act of 1845, ch. 352, remains in force.
    4th. That this act relates only to the remedy; that is, it prescribes the. mode, in which a party seeking to avoid any part of a contract on the ground 'of usury, shall bring such defence to the notice of the court. Until he does bring such'defence to the notice of the court, in legal contemplation it has no existence.
    In construing a constitution, the-courts must consider the circumstances' attending its adoption, and what appears to have been the understanding of those who adopted it, keeping in view the proper office of such an instrument, which is to declare general rules and principles, and to leave to the Legislature the duty of preserving or enforcing them, by appropriate regulations and penalties.
    The words in a constitution ought to be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it.
    if the people of the State, and their courts had regarded the statutes on the subject of usury as importing a certain thing, whenever the same or equivalent words are employed in a subsequent constitafeaLrfWiíatute, the presumption of law is, that they are used
    Appeal from the Court of Common;
    he rnak<$>©f a, □3 pavh"féffand issue Assumpsit, brought on the 5th of appellee, the holder, against the appelli promissory note for $250, dated the 8th ble at seven months, to the order of Micha^ by him endorsed. Plea, non-assumpsit, upon was joined.
    
      Exception: At the trial the plaintiff proved the making and endorsement, of the note, and the defence relied upon was that of usury. The proof on the part of the defendant, is sufficiently indicated by the following instructions, which he prayed the court to give to the jury.
    1st. If the jury shall believe from the evidence, that the note sued on in this case, was made and delivered to the plaintiff by the defendant, and at the time of doing so, more than the rate of six per centum per annum, was demanded, and paid on the amount of said note for the time it had to run, the plaintiff is not entitled to recover.
    2nd. If the jury shall believe from the evidence, that the note sued on in this case, was endorsed by Michael II. Bandel, for the accommodation of the defendant, and without consideration or value given by the said endorser, and the same was used by the defendant, to take up and renew a usurious note held by the plaintiff against the defendant for the same sum, and was delivered by the defendant to the plaintiff, upon taking up and renewing such usurious note and at the time of such transaction, besides the note sued on in this case, the defendant, agreed to pay for such renewal in money, at the rate pf one .per cent, per month, on the amount of said note, for the time it had to run, and actually paid such sum, and the plaintiff thereby became the first holder of said note for value, then the said note was usurious and void, and the plaintiff pannot recover.
    3rd. If the jury shall believe from the evidence, that the note sued on in this case, was given as a renewal of an accommodation note for the same sum, drawn by the defendant, dated the 2Qth of November 1854, which was first negotiated jby the plaintiff at the sum of $207.50, and that at the time pf said renewal, the note sued on was first negotiated and passed by the defendant to the plaintiff, in consideration of the said first note, and that the plaintiff at the time of the renewal demanded and received from the defendant, in consideration ^hereof, in addition to the note, the sum of $30, the plaintiff can only recover the sum of $207.50, with legal interest from the 20th of November 1854, after allowing a credit of the sum paid in money at the time of the renewal.
    These instructions and each of them, the court (Marshall, J.) refused to give, and to this ruling the defendant excepted. The verdict and judgment were in favor of the plaintiff, for the full amount of the note, with interest and costs, and the defendant appealed.
    The cause was argued before Le Grand, C. J., Eccleston, Tuck and Bartol, J.
    
      Jervis Spencer for the appellant:
    This case involves the question, as to the validity of a con-: tract in this State tainted with usury, and whether such a contract can be enforced in the courts pf $hp State? It was decided in the Court of Common Pleas, that the courts would not only enforce the contract, but that the plaintiff suing op such a contract, could recover not only the amount of consideration paid in the contract, but the excess too which constituted the usury. It is insisted for the appellant, that the court was wrong upon both propositions.
    The 49th section of the 3rd article of the constitution do-dares; that “the rate of interest in this State, shall not exceed six per cent, per annum, and no higher rate shall be taken or demanded,and the Legislature shall provide, bylaw, all necessary forfeitures and penalties against usury,” and it is upon the true construction and effect of this clause in the organic law of the State, that the question arising in the present case must be decided.
    By the 3rd article of the Bill of Rights, “All acts of Assembly, in force on the first Monday of November, eighteen hundred and fifty, except such as may have since expired, or may be altered by this constitution,''' are continued in force. By this it will be seen, that the constitution does not undertake to repeal any law by special reference, but declares all laws inconsistent with its provisions void. The act of 1845, ch. 352, cannot be a subsisting act, since the adoption of the constitution, for a simple comparison of this act with the clause of the constitution now in question, will show the law to be inconsistent with it. The latter, in plain, positive and direct terms, says, that “no higher rate than six per cent, interest, shall be taken or demanded,” while tbe former says, that more than six per cent, interest may be taken, demanded and recovered, unless the party chooses specially to plead the usury, and he can only do that upon the condition, that he pays the sum actually loaned with legal interest. The act of 1845, virtually repeals the law of 1704, and leaves the morals of the law of usury, to each individual who may happen to have a case involving the question, whereas the constitution comes in and says, there shall be a paramount policy which shall govern all cases, and further provides, that the Legislature shall pass laws imposing penalties upon usury. It clearly denounces the usury, and all that it leaves to the Legislature to do, is the imposing of forfeitures and penalties therefor. No more than six per cent, shall be taken or demanded, and this prohibition is the same, as if the constitution had said, no money shall be recovered upon any contract in consideration of illicit intercourse or any other immoral act, or crime, and that the Legislature should impose penalties therefor. It is not necessary that a penalty should be imposed, in order to avoid the contract, for if the Legislature should impose such penaltjr, the contract .would only be void by construction, and the imposition of such a penalty could have no more effect in avoiding the contract, .than the declared policy of the constitution. This provision in relation to usury, is the same as that in the 5th section of the 3rd article, in reference to lotteries, which declares, that “from and after the first day of April, eighteen hundred and fifty-nine, no lottery scheme shall be drawn, for any purpose whatever, nor shall any lottery ticket be sold in this State.”
    But this very provision has been construed by Chief Justice Taney, in the case of Dill vs. Ellicott, in the Circuit Court of the United States, and that eminent jurist was clearly of opinion, that this clause of the constitution does, of itself, avoid the contract, and upon the reasoning and authority of that opinion, this argument may well be rested. It is there decided, that though the constitution does notsay in express terms, that the contract shall be void, yet that a contract to do an act forbidden bylaw, is void,and cannot be enforced in a court of justice; that courts are instituted to carry into effect the laws of a country, and they cannot become auxiliary to the consummation of a violation of law; that no court of justice can, in its nature, be made the handmaid of iniquity.
    In the case of Territt, et al., vs. Bartlett, 21 Verm., 184, it was held, under the statute of Yermont, which prohibited the sale of spirituous liquors in that State, except under license to sell for certain specified purposes, that parties in New York, who had sold liquors to a person residing in Yermont, knowing that the latter intended to sell them without license, and in violation of this law, could not sustain an action in the courts of Yermont, to recover therefor, and the decision is placed upon the ground, that a contract which has for its object, or which contemplates any act prohibited by express statute, or the commission of which incurs a penalty, is as much illegal and void, as if the statute in express terms so declared. In the case of Bancroft vs. Dumas, 21 Verm., 456, it was held, under another statute of that State, which imposed a penalty for the sale of spirituous liquors without a license, that the contract of sqle was an illegal one, which a court of justice will never leud its aid to enforce, and it is there said, that it has long beeff settled law, that a promise made in consideration of an act which is forbidden by law, is void.
    By a statute of Massachusetts, the sale of shingles except of certain quality and size was prohibited under a penalty, and in the case of Wheler vs. Russell, 17 Mass., 258, it was held, that no action would lie upon a promissory note, the consideration whereof, was a sale of shingles not of the size prescribed by the statute, and Chief Justice Parker, delivering the opinion of the court said, that no principle of law is better settled, than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law. In Bayley vs. Taber, 5 Mass., 293, which was the case of the issuai of certain promissory notes made void by statute, and the maker of the notes set up the defence against an innocent holder, it was said by the court, that it is no novel doctrine, that a person shall be permitted to avoid his contract by alleging his own criminality, provided it consists in the violation of some positive statute; that contracts, the consideration of which is money won at play, or loaned at unlawful interest, have always been subject to the same rule, not only against those who participated in the offence, but even against innocent endorsers, when they have claimed the performance of such contracts.
    By statutes of New Fork, relating to turnpike and plank road companies, it was declared, that no director of the corporation “to which he shall belong, shall be concerned directly or indirectly in any contract, for the making or working of the road, or any part thereof, during the time he shall be a director,” and in the case of Barton vs. Port Jackson & Union Falls Plank Road Co., 17 Barb., 397, the company had made a contract for the construction of part of the road, with two of its directors who brought suit thereon against the company, but the court said: “The contract was expressly within the prohibition of the statute, and the question is, whether it is not therefore voidl The statute is only prohibitory in its terms. It does not declare, in so many words, that all such contracts shall be void. But this is not necessary. Every act done against a prohibitory statute is not only illegal but absolutely 
      
      void, and the court cannot assist an illegal transaction in any respect, or permit it to be set up as a protection.” '
    In the case of Mitchell vs. Smith, 1 Binney, 117, a suit was brought upon a sealed bill, the consideration of which was the sale of lands in Pennsylvania, under the Connecticut title, contrary to the statute of that State, which prohibited such sales, and imposed a penalty therefor, and the court held the contract void, and say: “All that is contended for is, that the contract is illegal, being founded on a breach of the law, and of consequence a void contract, and cannot be enforced in a court of law. And for this purpose, there cannot be a more express authority than the one in Carthew, 252, where Lord Chief Justice Holt, says, ‘that every contract made by or about a matter or thing which is prohibited, and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it. shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibitory words in the statute.’ This authority, although perhaps it might not warrant a conclusion, that a penalty implies a prohibition, for the purpose of making the offence punishable by indictment, in case the law had prescribed another and a specific punishment for the of-fence, yet it certainly is an authority, to prove that a contract about a matter prohibited by statute is unlawful, and a void contract, although the act does not expressly saj so, and that a penalty implies a prohibition, so as to make the contract toid.”
    In the case of Sharp vs. Teese, 4 Halsted, 352, it was held, that a note given by an insolvent debtor to two of his creditors, in consideration of their withdrawing their opposition to his discharge, under the insolvent laws of New Jersey, was void as being against the policy of those laws, and that an attempt to contravene the policy of a public statute is illegal, though the statute contains no express prohibition of such an attempt.
    In Wooten vs. Miller, 7 Smedes. & Mar., 385, it was held, that a note given for the price of a slave introduced into Mississippi, as merchandise, since the statute of that State prohibiting such importation, is void, because contrary to law, and no recovery can be had on it, upon the principle, that a contract in violation of law, or against public policy, cannot be enforced in the courts of the country, and the same principle was sanctioned in Odineal vs. Barry, 24 Miss., 23. The Supreme Court of Tennessee, in Hale vs. Henderson, 4 Humph., 200, held, that no principle of law is better settled, than that no action will lie to enforce a contract made in violation of a statute, or of the common law, or which is immoral in its character, and against public policy, and the contract, there condemned, was one by which a party agreed not tq bid for lands belonging to the State, and exposed to public sale by statute, and to use his influence to prevent others from bidding. Our own Court of Appeals, in Merrick vs. Bank of Metropolis, 8 Gill, 72, have said, that “a contract illegal in itself, or that contemplates the violation of some statute, or is against public morals, cannot invoke the aid of a court of justice; for the court will not contribute the means of infringing the law.” See, also, on this question, 4 Wash., C. C. Rep., 299, Toler vs. Armstrong; Byles on Bills, 236; 22 Viner’s Abr., 292, and 2 Rolle’s Rep., 469, Oliver vs. Oliver, (in which last two authorities it was held, that a contract tainted with usury was void at common law,) and also the cases cited in the opinion of Chief Justice Taney, in Dill vs. Ellicott.
    
    These authorities, I think, clearly establish, that the clause of the constitution now under consideration, prohibiting as it does, the taking or demanding of more than six per cent, interest, renders the note upon which this suit was brought void, and that the act of 1845 is no longer in existence. The only remaining question then is, can this defence he availed of under the general issue, or must it be specially pleaded? Upon this question there can be no difSculty, for it is clear, that an inhibition of this kind, in a fundamental law, need not be pleaded, and that usury may be giyen in evidence as a defence under the general issue. 1 Chitty’s Pl., 477. 2 H. & G., 134, Osgood vs. Spencer. 1 Strange., 498, Bernard vs. Saul. 3 Cranch., 180, Levy vs. Gadsby.
    
    
      
      Thos. G. Pratt and Thos. S. Alexander for the appellee:
    (An argument of Mr. Alexander, is also inserted in the appendix to this volume.)
    The first and second prayers of the defendant, affirm substantially, that the plaintiff cannot recover at all, because of the usury, and the third affirms, that under the issue of nonassumpsit alone, the plaintiff can only recover the principal sum advanced by him on the note, with legal interest thereon.-
    By the laws of the State, as they stood at the time of the adoption of the present constitution, it is clear, that the decision of the court below, rejecting the first and second prayers’ was right, (act of 1845, ch. 352. 9 Gill, 143, 145, Gwynn vs. Lee,) and the only question in this case is, as to the effect of the 29th section of the 3rd article of that constitution, - which enacts: “That the rate of interest in this State, shall-not exceed six per cent, per annum, and no higher rate shall-be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury.”
    On the part of the appellant the proposition is and must be, - that this constitutional provision, per se, annuls all contracts or securities made, or- originating under an usurious agreement, and repeals all the anterior legislation of the State, since the act of 1T04, protecting bona fide holders, without notice of the' usury, or imposing upon the borrower the obligation to pay the principal sum really advanced, with legal interest.
    On the part of the appellee it is insisted, that the whole purpose of this constitutional provision is, to fix the rate of inter-est, and determine what shall be usury in this State, by con-stitutional regulation put beyond the reach of legislation, and to leave to the Legislature the determination of all the conse--quences of the commission of usury, -of all the forfeitures or losses of right, and all the penalties to be incurred thereby,including the annulment of the contract or security, which, if made a consequence of usury, is a forfeiture and penalty also;, that it was not intended to abrogate the antecedent and then existing legislation of the State, as to the consequences of, or forfeitures and penalties for usury, but on the contrary, to preserve them, subject to the future power of the Legislature to alter or amend them; and that even if it were conceded, that this constitutional provision operates as an implied repeal of all .such anterior and then existing legislation., as to the consequences of usury, yet, as this provision itself declares none of the consequences of the usury, inflicts no forfeitures or penalties, and is merely mandatory to the Legislature, as to all the necessary forfeitures and penalties against usury, and there has been no legislation under that power and mandate, the security is not void.
    In construing this constitutional provision, we insist upon the following rules of construction.
    1st. That the constitution as an instrument framed for, and adopted by the people, is to he construed according to the understanding of its provisions by the people, and their intent in the adoption of them, so far as these can be ascertained either by the terms used, or by extrinsic aids to the ascertainment of that understanding and intent, and having reference to the proper office of a constitution, which is to declare general rules or principles, and to leave to the Legislature the duty of preserving or enforcing them by appropriate regulations, sanctions and penalties; and that the words used in such an instrument must be taken in their ordinary and common acceptation, because they are presumed to have been so understood, by the framers and by the people who adopted it. 5 Md. Rep., 351, State vs. Mace. 7 Md. Rep., 147, Manly vs. The State. 15 Pet., 492 to 503, Groves vs. Slaughter.
    
    2nd. That in construing it, it is always to be presumed, that its framers and the people knew the prior and then existing legislation of the State, and its judicial or well understood universally received construction. That, therefore, when, in any of its provisions, it adopts the very same enactments, or substantially the same enactments as are contained in a prior statute or statutes on the same subject, it is presumed also to adopt the decided, or understood and generally received construction of such prior statutes; and that when, in any of its provisions, there is not only a presumed but manifestly an intended reference to a prior statute on the same subject, and an adoption only of a part of the enactment of that statute, coupled with a power to the Legislature broad enough, according to the ordinary acceptation of the terms giving that power, to embrace the objects or subjects of the omitted enactments, the presumption is; that by such adoption of part, and such power to the Legislature as to the residue, it was intended to leave all the objects o,r subjects covered by the omitted enactments, to the action of the Legislature. 3 Gray, 450, Commonwealth vs. Hartnett. 26 Ala., 32, Durasmus vs. Harrison. 32 Eng. Law & Eq. Rep., 85, Ruckmaboye vs. Mottichund.
    
    3rd. That by the express provisions of the constitution itself, a citizen of the State is declared to be entitled to the benefit of all laws then in force, unless altered by the constitution, or until affected by future legislation, (Bill of Rights, art. 3,) and nothing but a clear and manifest intent by the constitution, to alter or abrogate such prior legislation, can deprive the citizen of his constitutional right to the benefit of such laws; that whenever, therefore, it is insisted, that the citizen has lost fiis constitutional right to the benefit of any such prior and then existing laws, by a mere implied alteration or repeal of them, flowing from other parts of the constitution, the question of such implied alteration or repeal, is a fortiori, to be governed by the well settled rules, as to such implied repeals, which are, that in construction they are never favored, that they are" never held to exist, if by any reasonable interpretation, the supposed conflicting enactments can be made to stand together, and that in ascertaining whether any such implied repeal was intended, and especially by a constitutional provision, it is proper to look to the object and policy of the prior legislation, alleged to be thus repealed, and the consequences of its overthrow, and to be satisfied in view of these, that by the adoption of the alleged repealing constitutional provision, as understood by the people adopting it, they intended to overthrow such prior legislation and policy. 4 G. & J., 152, Ches. & Ohio Canal Co. vs. Railroad Co. 11 Grattan, 220, Parramore vs. Taylor.
    
    In applying these rules of construction, it is insisted: 1st. That even if it were conceded, that this clause of the constitution did impliedly prohibit or render unlawful, not only the taking of usurious interest, but also the mere contract or agreement to take it, it did not thereby annul the contract; and 2nd, That according to the true construction, it was intended to do no more than fix the rate of interest, define what should be usury, and prohibit the taking or recovery of the excessive interest. These views we shall consider in their order.
    The first view proceeds upon the hypothesis, that by the enactment, that “no higher rate than six per cent, shall be taken or demanded,” the contract or agreement to take.more, or the contract or security on which it is taken, is thereby impliedly prohibited and rendered unlawful, and even under this hypothesis it is insisted:
    1st. That even if the contract was thereby prohibited and made unlawful, it was not thereby necessarily annulled or made yoid, but the question, whether it was the purpose of the constitution, by the force of its own prohibition merely, to render the prohibited contract wholly void, or only to subject it to such forfeitures and penalties, (including the total or partial loss of his rights under the contract,) as the Legislature might have declared, or deem it proper to declare, is a question of intention, in the adoption of it by the people, to be collected from the whole scope of the provision itself, considered in connection with the anterior and then existing laws on that subject. 12 How., 80 to 84, Harris vs. Runnels.
    
    2nd. That this provision is the same, or substantially the same, as the enactment of the 1st section of the act of 1704, ch. 69, by the 2nd and 3rd sections of which, the usurious contracts and securities are declared void, and the penalties against usury prescribed; that by the well settled rule of construction applicable to all statutes, the 1st section of this act did not accomplish what was accomplished by the 2nd section, viz.; the avoiding of the contract or security, because the enactments of the 2nd section, are not to be regarded as mere surplussage, but on the contrary, as designed to effect what the 1st section had not effected; that the 2nd and 3rd sections of this act are manifestly intended to declare the forfeitures and penalties for the usury, and. as a part of those forfeitures, the loss of all rights under the contract by declaring it void. And that, therefore, under file second rule of interpretation before stated, th,e constitution by the adoption only of the enactments of the 1st section, and the power to the Legislature to make provision for all necessary forfeitures and penalties, covering sall the objects of the 2nd and 3rd sections, did not intend to avoid the contract or security, but to ieaye that, as well ps all Other forfeitures and penalties, for legislative regulation.
    3rd. That the proposition, that this constitutional provision, per se-, avoids the contract or security, is necessarily an affirm-: anee of the additional proposition, that it also operates a repeal of the acts of 1824, ch. 200, 184-5, ch. 352, and perhaps, also of that of 1847, ch. 255, as a complete overthrow of the wise and just policy of those acts, as to the consequences of usury, and a restoration of the rigorous provisions of the 2nd section of the old act of 1704, which have again and again fallen under the condemnation of our courts as going beyond the mischief, and promotive only of injustice and fraud, and were swept away by the Legislature, in deference to the universal sentiment of society. By these acts of 1824, 1845 and 1847, the forfeiture' of the contract or security, is so limited as to protect innocent parties, and to give to the borrower, both at law and in equity, only that relief to which he is honestly entitled. The innocent holder without notice of the usury, is, by them, entirely protected. In every case where the defence of usury is available, the borrower is required to pay what is honestly due from him, the principal and legal interest. The policy established by these acts has been by our-courts every where, as well as by our legislation, declared to be one corrective of fraud and injustice, and entitled in the courts, to the construction of highly remedial acts, and it is insisted, that it never was the purpose of the people, by the adoption of this clause of the constitution, to repeal this legislation, to abandon the settled and progressive policy, which the legislation of our people, and the decisions of our courts, down to the moment of the adoption of the constitution, had established and sustained, as necessary to correct fraud and injustice, and by a retrogade policy, unheard of in the history of a people, to return to a system here, and it might be added throughout the land, long since repudiated as one productive óf fraud and injustice. It is also insisted, that even if this ¿lause, as adopted, contemplated new regulations on that subject, instead of those of the prior acts, its purpose was to leave them for tire determination of the legislature.
    Our second view is, that this clause of the constitution, according to its true construction, was only intended to fix the rate of interest and define usury, leaving all the consequences of its commission to the regulation of the Legislature; that, in any view, its only prohibition is against the demand or receipt of the excessive interest, and that alone is rendered unlawful by it; and that such prohibition was not intended to, and does not, per se, render the whole contract unlawful and void, and especially not as to the principal and legal interest; and in support of this view it is insisted:
    1st. That this is the obvious, ordinary,- common sense acceptation of this prohibition, against, taking or demanding more than six per cent., and a fortiori, when coupled with the further provision, referring tire whole subject of the forfeitures and penalties against usury, to the regulation of the Legislature; and that this, therefore, is the sense in which it must be presumed to have been understood and received by the people when they adopted it, according to the first rule of interpretation before stated.
    2nd. That this is the proper construction,-because by it the whole evil at which the prohibition aims — the excessive interest' — is corrected, whilst the contrary construction, going beyond the mischief, injures the innocent, and enables the borrower to practice injustice and fraud, by absolving him from his conceded moral obligation to pay what is justly due from him; because, by it the constitution is thus in consonance with the legislation, and settled policy of the State, on this subject, as it existed at the adoption of the constitution, and had long existed, as one introduced in part by equity, and extended by law, in accordance with the universal sentiment of the people, to prevent fraud and injustice; and by it any implied repeal of such legislation, which is never to be favored, but to be avoided if by any reasonable construction it can be, is thus avoided; whilst the contrary construction, not only renders necessary such implied repeal, but also imputes to the people, in their adoption of this clause, an intent at war with the fixed and progressive policy of the State, for nearly half a century, and a return to a system long since repudiated by them, as one productive of fraud and injustice.
    3rd. That construing this clause, not merely by the rules applicable to the construction of the constitution,'as the act of the people/ but also by those which' apply to statutes, passed in the ordinary course of legislation', the thing prohibited being the “taking or demanding more than six per cent.,” this prohibition does not also, per se, include a prohibition against taking or demanding the principal or the legal interest, or render this also unlawful; that whatever might be the effect of such a prohibition, standing alone, on the whole contract,- yet upon the well settled rules in the construction of statutes, which give meaning and effect to every part, and permit none to be rejected as mere s'urplussage, and which, for this purpose, will even' restrict the meaning or effect of general words or regulations, so as not to embrace that which is, in the sanie statute, specifically mentioned and regulated, wherever such a prohibition as this is coupled with other enactments, which specifically determine and regulate .the effect of the usury upon the contract itself, these specific regulations must alone determine that effect; that, therefore, under our. act of. 1704, ch. 69, as well as under' the English statute of.Anne, the nullity of the contract itself, wherever it is annulled, under these statute's, is accomplished, not by force of the prohibition against taking or demanding more than the fixed rate of interest, but by the subsequent and distinct enactment, declaring the contract or security void; that, therefore, wherever in the subsequent legislation of (he same, or even of another State, there is a manifest reference to, and adoption of, the prohibition of these acts, it is to receive the same construction as in these acts, and if adopted as the prohibition only, omitting that part of their enactments which declares the nullity of the contract, it is to be presumed, that no such consequence was intended by the. adoption of the prohibition merely; that even if this were not so as to ordinary legislation, yet, that under our constituiion adopted by the people, with the knowledge, or presumed knowledge, of the enactments of the act of 1704, and of its modifications by the acts of 1824, ch. 200, 1845, ch. 352, and 1847, ch. 255, its prohibition,.which is evidently an adoption, of the 1st section of the act of 1704, with a reference to the Legislature, for the determination of all the forfeitures and penalties, to be consequent, upon its violation, was manifestly intended to leave, for legislative regulation, all that was regulated by the 2nd and 3rd sections of the act of 1704, including the effect of usury upon the whole contract.
    As authorities supporting these positions, in addition to those already cited, we refer to 1 H. & G., 477, 484, Sauerwein vs. Brunner; 9 Gill, 307, Bangher vs. Nelson; 6 G. & J., 24, Trunbo vs. Blizzard; 7 Gill, 173, Carter & Wife, vs. Dennison; 10 Md. Rep., 279, Scaggs vs. Rail Road Co.; and 1 Md. Ch. Dec., 69, Wilson vs. Hardesty, as showing the construction placed by our courts upon these usury laws, and their policy, and in what light they have uniformly regarded the defence of usury; and to 1 Annual Rep., 265, Reid vs. Duncan; 2 Annual Rep., 363, Hynes vs. Cobb; 2 Dallas, 92, Wycoff vs. Longhead; 12 Sergt. & Rawle., 46, Turner vs. Calvert; 7 Ohio, 81, Lafayette Society vs. Lewis; 8 Ohio, 271, Bank of Chillicothe vs. Swain; 3 McLean, 604, McLean vs. Lafayette Bank; 8 Wheat., 354, Fleckner vs. United States Bank; 10 Wheat., 392, De Wolf vs. Johnson, and 9 Pet., 398, United States Bank vs. Waggener, as showing that this provision in the constitution does not, per se, render the contract void, and in reference.to them it may be remarked, that the case in 9 Pet., is, in our view of it, explanatory of, and expressly overrules the case of Bank of United States vs. Owens, 2 Pet., 527, relied on ia the opinion of Chief Justice Taney, in Dill vs. Ellicott, and re-affirms tiie doctrine announced in the case of Fleckner vs. United States Bank, 8 Wheat., 354, by Justice Story, who there says: “The statutes of usury of the States, as well as of England, contain an express provision, that usurious contracts shall be utterly void; and ivithout such an enactment the contract would be valid, at least in respect of persons who were 
      
      strangers to the usury. The taking of interest by the bank, beyond the sum authorized by the charter, would doubtless be a violation of its charter, for which a remedy might be applied by the government; but as the act of Congress does not declare, that it shall avoid the contract, it is not perceived how the original defendant could, avail himself of this ground to defeat a recovery.” We also refer to the following authorities, to support these and the other positions of this argument. 2 Taunt., 184, Barnes vs. Hedley. Dwarris on Statutes, 706, 707, 743. Comyn on Usury, in 5 Law Lib., 673. 2 Douglas, 735, Lowe vs. Waller. 1 Pet., 37, Gaither vs. Farmers & Mechanics Bank of Georgetown.
    
    If these positions are sound, then the act of 1845, ch. 352, is in force, and the court below was right in refusing to grant the défendant’s third prayer, because the defence could only be availed of by a special plea.
   Le Grand, C. J.,

delivered the opinion of this court.

This was an* action instituted in the Court of Common Pleas of Baltimore city, by Isaac, the holder, against Bandel, the drawer, of a promissory note, to recover its amount.

At the trial below there was full and unquestioned proof of the making and endorsement of the note. Under the plea of non assumpsit the defence relied upon was that of usury, and none other. To that objection we address ourselves, and, as • this is a matter which concerns the daily transactions and dealings of men, we will be as plain and brief as the nature of the inquiry will allow.

If the defence in this case be at all available, it must be because of the language of the Constitution. In the 49th section of the 3rd article of the Constitution is the following:

“The rate of interest in this State shall not exceed six peícent. peí' annum, and no higher rate shall be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury.”

Were it not for an opinion pronounced by the judges of the Circuit Court of the United States, for the district of Maryland, in the case of Dill vs. Ellicott, we would experience but little,if any difficulty, in determining tiie true import of the constistitutional provision. Our high respect for the judgment of the learned judges who gave that opinion, has called upon us to weigh most carefully the reasons given in its support, and to review with the strictest scrutiny our own opinions in regard to the matter. The more we have reflected on the subject, the more thorough has been our conviction, that the rule laid down in Dill vs. Ellicott ought not to be accepted in this State, as the proper interpretation of the Constitution in this particular.

The theory, on which rests the decision to which we have adverted, is simply this: that the taking of more than six per cent, interest, for the use of money, is usury, and therefore prohibited by law, and, as a consequence, any contract which reserves or authorizes the taking of more than six per cent, is wholly void, and, on grounds of public policy, incapable of being enforced by our courts. To this general proposition, to our minds, there are substantial and unanswerable objections. The effect of the decision of that court is, that a contract providing for the payment of more than six per cent, is not simply void as to the excess, but void entirely. The only authority adduced in support of this view is, the case of the Bank of the United States vs. Owens, 2 Peters, 527. In that case, by a bare majority of the court, it was held, that under the charter of the bank a contract, by which more than six per cent, was to be paid, could not be enforced, and that although such contracts were not, in ivords, by the charter, pronounced void, yet the policy of the law made them so in fact, and worked a forfeiture of the money loaned. In that case it was also held, that ‘‘reserving’” was the-equivalent to “taking.” When the same case again appeared before the same court, this was declared to be error, and the distinction between the two clearly pointed out in the opinion of Justice Story. The “reservation,” says he, “of usurious interest makes the contract utterly void; but if usurious interest be not stipulated for, but only taken afterwards, then the contract is not void, but the party is only liable to the penalty for the excess.” 9 Peters, 399. This decision also established, that the transaction which bad been formerly declared to be usurious and void was free from all taint; and whilst the court does not, in terms, overrule the doctrines of the decision in 2 Peters, yet, in explanation of them, places it upon the ground that the case came before the court on a demurrer which admitted the transaction to have been “unlawfully, usuriously and corruptly entered into.” With this notice of it, the court then declare, that they “deliberately adhere” to the doctrine of Fleckner vs. The Bank of the United States, 8 Wheaton, 354. In that case it is said: “The statutes of usury of the States, as well as of England, contain an express provision, that usurious contracts shall be utterly void; and without such an enactment the contract would be valid, at least in respect to persons who were strangers to the usury.” Now this language was held as applicable to a clause in the charter of the bank, which declared: “That the bank shall not be at liberty to purchase any public debt whatsoever, nor shall it take more than at the rate of six per centum per annum, for, or on its loans or dividends.” It is this clause in the charter which the court examined in the case in 2 Peters, and on the interpretation of its import there given, the case of Dill vs. Ellicott was decided by the Circuit Court for the district of Maryland. If the decision of Fleckner vs. The Bank of the United States is, as was said in 9 Peters, to be adhered to, it follows, the interpretation given in 2 Peters cannot be maintained, for it is in direct conflict with it. Whatever, therefore, might have been' the force, as authority, of the case in 2 Peters, it has ceased since the decision in 9 Peters, where it is substantially overruled, and its opposite, the doctrine of 8 Wheaton, set up, and which, we think, is conclusive of this case, it being, in our judgment, in conformity with the decisions of most of the different States, and in conformity with good reason. The court say: “The taking of interest by the bank, beyond the sum authorized by the charter, would doubtless be a violation of its charter, for which a remedy might be applied by the government, but as the act of Congress does not declare that it shall avoid the contract, it is not perceived how the original defendant could avail himself of this ground to defeat a recovery.”

If this be sound law, and we shall presently proceed to show that it is, why should a different interpretation be given to the 49th section of the 3rd article of the Constitution of Maryland? It “does not declare,” that a contract exacting more than six per cent, shall be void, any more than did the clause in the bank charter. So far from it, it is plain to us from the very words of the section, that its purpose was, first, to fix and establish a certain legal rate of interest; second, to leave-it with the Legislature to provide, “by law,” what amount and kind of forfeiture and penalty should be suffered by, and imposed upon, those who should take or demand more than six per cent.

The thing forbidden by the Constitution, is the taking or demanding a higher rate of interest than six per cent.; it is not forbidden to take or demand that or a lesser rate. The thing forbidden is the excess and nothing else, and that is what is illegal and void, and it is within the province of the Legislature to punish this illegality by forfeitures and penalties. Whilst the Constitution makes it competent to the Legislature, “by law,” to forfeit the whole, or any part, of the money loaned, and, in addition, to impose a penalty, yet, until it does exercise this office, all that is “avoided” by the Constitution is the excess beyond the six per cent. Prior to the present Constitution, the legal rate of interest depended upon the legislative pleasure, to be changed whenever it seemed expedient. The framers of the Constitution thought it best to deprive the Legislature of this discretion, and therefore fixed the rate in the Constitution, but continued to the Legislature the power of determining the forfeitures and penalties.

By the act of 1704, ch. 69, see. 1, it was provided, that no person or persons, whatsoever, should “exact or take, directly, for loan of any moneys,” &c., at a higher than a certain rate specified in the section. This language is certainly as strong as that of the Constitution, and yet the Legislature that passed that act did not suppose that if a higher rate was exacted or taken, the contract was therefore avoided because of this declaration, and accordingly, therefore, went on, by the second section of the act, to make all such usurious contracts void. 'and, by the third section, to provide forfeitures and penalties for the making of such contracts. The power exercised by the Legislature, in the passage of the second and third sections of the act of 1704, is the same as that which it is authorized' to exercise by the 49th section of the 3rd article of the Constitution. If, as is the case, the Legislature has not provided, “by law,” forfeitures and penalties, the courts cannot usurp the authority which the Constitution has, in express terms, empowered it to exercise. If the framers of the Constitution understood that the mere fixing in that instrument the legal rate of interest, per se, avoided the contract, they would not have confided to lhe Legislature the power to provide, by law, “forfeitures,” for in that case there would be nothing to forfeit, and they would have simply directed the Legislature to provide a penalty. We must presume, that the convention which framed, and the people who adopted, the Constitution, understood what was the previous state of the law on the given subject, and that they were aware of the fact, that whatever may have been the view entertained in times gone by, in England and elsewhere, as to the sinfulness of taking interest, that here, in Maryland, both the Legislature and courts held it lawful and proper to do so to a certain rate, and beyond that as only malum prohibitum, and not as morally wrong in itself; that they considered it but little, if anything, short of immoral, for a. person to avoid his solemn promise to refund what he had actually received of another’s money. They could not have been uninformed of the existence of the act of 1845, ch. 352, which made it incumbent upon any one claiming to avail himself of the provisions of the act of 1704, specially to plead and set out, .both principal and interest actually and fairly due, and that even when this should be done, the party so pleading was made liable for the principal and interest actually due; and if not ignorant of this, it is impossible to believe, they could have intended to repeal this act by indirection, when it was so easy to have done it in plain words. The very fact of not having done so, in such a manner, is conclusive evidence, to our minds, that they never intended to do so, but designed to leave that subject to the Legislature, And inasmuch as a repeal of a law is not to be unnecssariiy inferred, and as the third section of tire BiJl of Rights continues in force “all acts of Assembly in force on the first Monday of November, eighteen hundred and fifty, except such as may have expired or may be altered by this Constitution,” we conclude, (the Legislature not having done so,) that the act of 1845 is still in full force, subject “to the revision of, and amendment or repeal by, the Legislature of this State.”

In construing a Constitution, we must take into consideration the circumstances which attended its adoption, and what appears to have been the understanding of those who endorsed it with their approbation, keeping always in view the proper office of a Constitution, which is, to declare general rules and principles, and to leave to the Legislature the duty of preserving or enforcing them by appropriate regulations, penalties, &c.; and, also, that the words in such an instrument ought to be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it. State vs. Mace, 5 Md. Rep., 351. Manly vs. The State, 7 Md. Rep., 147. Groves vs. Slaughter, 15 Peters, 449.

Now if the people of Maryland had been accustomed, and their courts had regarded the statutes on the subject of usury as importing a certain thing, whenever the same or equivalent words are employed in a subsequent Constitution or statute, the presumption of law is, that they are used in the same sense. Duramus vs. Harrison & Whitman, 26 Ala., 326; Ruckmaboye vs. Mottichund, 32 Eng. Law & Eq. Rep., 84. And, as was correctly said by Justice McLean, in McLean, Assignee, vs. The Lafayette Bank, et al., 3 McLean, 613, if it be “admitted, that where a contract is made in violation of a statute, or of the policy of the law, it is void. And that a usurious contract in Ohio is not only against the statute, but in violation of the policy of the law. But the law seems to be well settled in this State, that usury constitutes an exception from the general principle; so that the contract is only void for the excess of interest. Other States have construed their laws against usury in tire same way. Now, whethe,. this construction be right or wrong, is a matter of no importance; it is the law;” so we say, that even were it conceded,(although we deny it in fact,) that, the general understanding, in this State, of the meaning and office of the first section of the act of 1704, was erroneous, yet it is the law, and in construing our Constitution, we must construe it as a question of intention in the adoption of it by the people, to be collected from the.whole scope of the provision itself, considered in' connection with the anterior and then existing laws on the particular subject. 12 Howard, S. C. Rep., 80. Here we have a clause in our Constitution forbidding the demanding or taking more than six per cent, as .interest, with an authority to the Legislature to provide, “by law,” in the way of forfeitures and penalties, what shall be the punishment for demanding or taking more; and in such a case the rule is settled by the case just cited from 12 Howard, that on a whole view of the prohibition, and accompanying provision for regulations in regard to the thing prohibited, that the contract is not avoided by virtue of the prohibition, but by the regulation which expressly declares it to be so. This case, whilst it admits-some diversity in the decisions on the subject, is a sufficient answer to most of the cases cited at the bar by the appellant’s counsel.

We might, if we deemed the occasion to require it, multiply authorities to almost any extent in affirmation of the views we' have stated, but we think we have referred to a sufficient number, and shall, therefore, content ourselves with a brief recapitulation of the points of this decision.

1st. We hold, that the 49th section of the 3rd article of the Constitution does not, of itself, make void, in whole, a contract demanding or exacting more than sir per cent, interest. It merely fixes the legal rate of interest.

2nd. That it is for the Legislature, by forfeitures and penalties, to make the contract void, either in whole or in part, as to it may seem best, and by penalties, punish the party or parties making such a contract.

3rd. That until the Legislature shall, “by law,” provide the necessary forfeitures and penalties, the act of 1845, ch. 352, remains in force.

(Decided March 16th, 1859.)

Wo hold the act of 1845, with the exception of its 5th &, 6th sections, to be nothing more than an act relating to the remedy, that is to say, it prescribes the mode in which the party seeking to avoid any part of a contract, on the ground of usury, shall bring such defence to the notice of the court. Until he does bring such defence to the notice of the court, in. legal contemplation, it has no existence. If, however, it should be deemed expedient to adopt any other mode, it is for the Legislature to provide it.

From these it follows, that the judgment of the Court of Common' Pléas must be affirmed, each and all the prayers offered by the defendant being in conflict with the view we have taken, and were, therefore, properly refused. Until the Legislature shall otherwise order, an action may be maintained on a contract on which was demanded or taken more than six per cent, interest; and if the defendant desires to rid himself of liability for the excess beyond the six per cent., he must specially plead and set out what is actually and fairly due on the contract; unless he does so, he will be responsible to the extent of the face of his contract.

In further support of this opinion, we refer to the following cases: Groves, and other, vs. Slaughter, 15 Peters, 449. Bank of Chillicothe vs. Swayne, and others, 8 Ohio, 280, 281. Hynes vs. Cobb, et al., 2 Louisiana Annual Rep., 363. 2 Dallas, 92.

Judgment affirmed.  