Ex parte Lichtenstein

Morrison, C. J. The petition for a writ of habeas corpus in this case sets forth “that a complaint was filed against the petitioner in the Police Court of the city and county of San Francisco, charging that he was engaged in and was conducting the business of a pawnbroker in said city, and as such received from a person therein named one gold watch as a pledge in consideration of a loan of thirty dollars, and did then and there unlawfully and wilfully charge on said loan a rate of interest in excess of two per cent per month, to wit, interest at the rate of four per cent per month, and thereupon the petitioner was brought before said Police Court, was tried and convicted, and sentenced on said charge. Defendant thereupon appealed from said judgment of conviction to the Superior Court of the city and county of San Francisco, where said judgment was duly [360]affirmed.” It is claimed that the petitioner is unlawfully restrained of his liberty, because the act under which he was prosecuted is unconstitutional and void. The following is the law for a violation of which petitioner was convicted:—

“Section 340 of the Penal Code is hereby amended so as to read as follows: —

“ Every pawnbroker who charges or receives interest at the rate of more than two per cent per month, or who, by charging commissions, discount, storage or other charge, or by compounding, increases or attempts to increase such interest is guilty of a misdemeanor.”

Section 340 of the Penal Code, which was passed before and was in force when the new Constitution went into effect, prohibited pawnbrokers from receiving a greater rate of interest on loans than four per cent per month. The contention is that the last act on this subject, and the one under which the prosecution in this case was had, and which was approved March 7, 1881, is in violation of certain provisions of article iv., section 25, of the Constitution. The following are the provisions said to be violated: —

“ The legislature shall not pass local or special laws in any of the following enumerated cases; that is to say, second, for the punishment of crimes or misdemeanors.

“ Twenty-third, regulating the rate of interest on money.”

This case really turns upon the second prohibition above referred to, because if the legislature had the right to prohibit pawnbrokers from charging a larger rate of interest than two per cent per month on loans made by them, it had a right to punish parties who violated the law; otherwise it would be a law without a sanction to enforce it.