Page:North Dakota Reports (vol. 2).pdf/110

 APPEAL from district court, Grand Forks county; Hon. CHARLES F. TEMPLETON, Judge.

H. L. Whithed (Bangs & Fisk, of counsel), for appellant. Burke Corbett (Cy Wellington and Cochrane & Feetham, of counsel), for respondent.

Action on promissory note for the purpose of testing the constitutionality of chapter 184, Laws of 1890, known as the “usury law." Judgment for plaintiff, holding the statute void under the state constitution. Defendant appeals. Reversed and district court directed to dismiss the action.

H. L. Whithed for appellant:

The contract in this case failed to express the exact amount of money to be received by the borrower. Having failed to do this, the section is indivisable, and it is made by the statute and so declared to be usury, which would make the contract nugatory and void, and respondent would be entitled to recover nothing. McGee v. Trotter, 1 Heisk 453. The authorities are numerous to the effect that usury, under whatever guise it will be cloaked, will be detected and ferreted out by the courts. It is also equally well recognized that a principal, as in this case, cannot, by way of a fee or compensation, take to exceed the rate of interest allowed by law. If § 11 of the act is unconstitutional it leaves the balance of the act operative and valid. Mathias v. Cromer, 40 N. W. Rep. 926. An unconstitutional provision or section in a statute will not affect the other provisions of the law, unless they are essentially and inseparably connected in substance. Cooley's Const. Lim. 177; Com. v. Hitchings, 5 Gray 485; People v. Briggs, 50 N. Y. 553. If the general provisions of the law are unobjectionable, the whole act will not be declared nugatory in consequence of some objectionable provisions. Smith v. Village of Adrian, 1 Mich. 495; Ames v. Booming Co., 6 M.I. 266; People v. Haug, 37 N. W. Rep. 21; Woolen v. State, 5 So. Rep. 39. The taking of premiums by building and loan associations is generally considered unobjectionable. Association v. Robinson, 69 Ala. 413; Winsted, etc., v. Ford, 27 Conn. 282; Id v. Rice, 27 Conn. 293; McLaughlin v.