In State v. Tuscaloosa Building Loan Association, 230 Ala. 476,161 So. 530, 99 A.L.R. 1019, the holding was that building and loan associations, with charter powers and conducted in the manner of this defendant association, as disclosed by the agreed statement of facts, were lenders of money and subject to the license here sought to be collected.
We are unable to follow the reasoning of the appellant that (due doubtless to the financial depression), defendant having but a small sum to loan, it may escape liability. The lawyer who opens his office for business is due to pay his license whether or not a single client darkens his door. Indeed, the volume of business is wholly immaterial.
The mere fact that the license is payable in advance should suffice to demonstrate the soundness of this conclusion. The statute (section 361, Gen.Acts 1919, p. 395) specifically provides as to such businesses that those engaged therein "shall first procure a license."
Clearly, if defendant had, and continued to keep open, an office in the city of Montgomery, collecting interest on former loans (as agreed statement of facts discloses), and continues to make loans, though few in number and small in amount, it is liable for this license payable in advance.
We have held in the Tuscaloosa Building Loan Association Case, supra, that the principal business of such a corporation is lending money.
The facts show that defendant's major income during the years here in question was from interest on loans. The fact that during these years the principal part of the loan business was in looking after those loans cannot serve to remove defendant's business from the force of the statute. This was a part of the loan business. Defendant has not liquidated. It did not cease to do business, but continued to maintain its place of business in the city of Montgomery, and in the year 1935 its loan business actually increased.
The purpose of the statute was to exclude those persons who, as a mere incident to their private affairs, occasionally loaned money, but who were not really engaged in such business.
The expression "whose principal business is lending money," as found in schedule 70, § 361, Gen.Acts 1919, pp. 395, 419, is a mere matter of classification, and nothing more. Defendant comes within this classification by its very charter powers and the purpose of its creation, as decided in the foregoing authority. The loans made from year to year show a continuance in business. What business? The business of a loan association, of course, and the principal business of a loan association is the lending of money. The number and amount of loans are, therefore, in our minds, wholly immaterial (Nashville, C. St. L. Ry. Co. v. Alabama City, 134 Ala. 414, 32 So. 731), and we think it logically follows that the trial court correctly ruled in holding defendant liable for the license.
Our conclusion is the judgment should be affirmed, and it is of consequence here so ordered.
Affirmed.
ANDERSON, C. J., and GARDNER, BOULDIN, and BROWN, JJ., concur.
THOMAS, FOSTER, and KNIGHT, JJ., dissent.