dissenting
This case is but another installment in the saga of judicial rewriting of the usury statutes. While the court gives lip service to the statutory law, it continues to rely on judicial niceties, constructed out of whole cloth, to avoid applying the usury statutes as written.
By its enactment of Idaho’s usury statutes, the legislature has declared, in plain terms, the public policy of this state. That policy has been well expressed:
“It has always been recognized that in the power of the lender to relieve the wants of the buyer lies the germ of oppression, and with the humanitarian purpose of protecting needy borrowers from unconscionable money lenders, the legislatures of many states have enacted laws designed for the protection of borrowers against the oppressive exactions of moneylenders which often they are powerless to resist, limiting the rate of interest the lender of money may charge for its use.
Although usury laws may be and often are harsh in their language and effect, yet insofar as they establish a legislative policy, the courts must apply and enforce them; a court does its full duty when it carefully inquires whether there is a violation of the law, and if there is, gives to it the effect prescribed by the legislature.” 45 Am.Jur.2d Interest and Usury § 4 (1969) (Footnotes omitted.)
This court, ignoring that policy, and ignoring the fact that the charging of excessive interest is detrimental not only to the particular debtor involved, but also to the general health of the economy, seeks whenever possible to fabricate a judicial exception to prevent application of the plain meaning of the usury statutes.
In the instant case, the majority avoids application of the statute by positing that 18% interest on open account balances which are past due is not really interest at all because it is not a “loan or forbearance,” words which do not even appear in the Idaho Code usury laws. The fact is that DeShazo was paying Terrell 18 cents per annum for every dollar, or dollar’s worth of property, obtained from and owed to Terrell. The only thing provided to DeShazo by Terrell in return for the payment of the 18% interest was the use of its money, measured by capital goods unpaid for.
One area where this court has chosen to avoid application of the usury laws is the “credit sale” transaction. The court held in Peterson v. Philco Finance Corp., 91 Idaho 644, 428 P.2d 961 (1967), that a credit sale is not subject to the usury laws of this state. The door was thus opened for loans to be disguised as “credit sales” and thereby escape usury penalties. This court was even willing to oblige a business so seeking to pass its loan off as an installment credit sale. In Buchanan v. Dairy Cows, 97 Idaho 481, 547 P.2d 526 (1976), this court joined with the lender in the fiction of calling a loan of money to purchase dairy cows a “credit sale,” even though the evidence was clearly to the contrary.1 The author of the majority opinion in this case, dissenting in Transportation Equipment Rentals v. Ivie, 96 Idaho 223, 526 P.2d 828 (1974), pointed *522out the court’s error in failing to see through an “artfully disguised financial arrangement” which the majority had accepted as a lease. The effect of that decision was a further erosion of the usury laws of Idaho.2
This court utilized the so-called “loan or forbearance” test for exception to the usury statutes in Bell v. Idaho Finance Co., 73 Idaho 560, 255 P.2d 715 (1953), and in the recent opinion, Rangen v. Valley Trout Farms, Inc., 104 Idaho 284, 658 P.2d 955 (1983), used that dodge again to avoid holding an 18% interest charge on an account for trout feed usurious.
Justice would be better served if this court, failing to find a pretext for holding all usury laws unconstitutional, would apply its intellectual energies toward implementing the clear legislative policy set forth in the statutes. At this point, it appears that the only redress will be for the legislature to send this court a message by enacting amendments to the statute which expressly remove the exceptions we have legislated.
The court’s electing not to follow the clear language of the applicable statutes in the instant case is particularly manifest. At the time of the events giving rise to this appeal, two sections in Title 28, Ch. 22, I.C. set out statutory interest rates. I.C. § 28-22-105 provided for a maximum rate of interest which could be charged “on money due or to become due on any contract” of ten per cent (10%) per annum with certain specified exceptions not applicable in this case. That section applied to written agreements between parties for the payment of a certain rate of interest. As to situations where only an oral agreement existed, or no agreement existed at all, for the payment of a certain rate of interest, 1.C. § 28-22-104 provided for a “legal” rate of interest “at the rate of eight cents (8$) on the hundred by the year” or 8%, applicable to certain specified transactions, including “[mjoney due on open accounts after three (3) months from the date of the last item.”
I.C. § 28-22-107 stated, in part:
“Usury — Charging—Penalty—Indorsee in due course, exception. — The taking, receiving, reserving, or charging a rate of interest greater than is allowed by this chapter, when knowingly done, shall be deemed a forfeiture by the person so taking, receiving, reserving or charging to the benefit of the person paying or being charged, of the entire interest which the contract carries with it or which has been agreed to be paid thereon, plus twice the amount of such interest.” (Emphasis added.)
The trial court relied on I.C. § 28-22-104, there being no express agreement between the parties as to a rate of interest to be charged on their open account contract.3 It read the clear language of I.C. § 28-22-107, supra, and reasoned that since plaintiff had knowingly charged 18% interest on defendant’s account balance past due, it had charged “a rate of interest greater than is allowed by this chapter.” I can find no reason to reverse the judgment of the district court.
It is true that the language in § 28-22-107 which states, “interest which the contract carries with it or which has been agreed to be paid thereon” seems to contemplate a situation where the parties have expressly agreed to a given rate of interest, making the statute not applicable to a § 28-22-104 situation. However, § 28-22-104 is not limited to cases where there was no agreement at all; it applies to cases where there is “no express contract in writing.” Moreover, the word “contract” in § 28-22-107 appears to refer to the transaction as a whole, rather than any separate agreement as to the amount of interest to be paid.
*523It might be argued that § 28-22-104 provides an allowable rate of interest for those situations where no rate is otherwise provided for, and that it was never intended to be read as a “maximum” rate of interest. Granted that argument is possible, but it is overcome by the fact that. § 28-22-104 allows 8% interest charges, and does not allow 18%; an 18% interest rate, knowingly charged, is “greater than is allowed by this chapter,” pursuant to § 28-22-107, and therefore constitutes usury.
Perhaps the most persuasive argument in favor of the enforcement of § 28-22-104 by means of § 28-22-107 is that there is no other way of preventing usurious interest rates in transactions where the debtor has not expressly agreed in writing to the unlawfully high interest rate, that being the prerequisite to application of I.C. § 28-22-105. In order for § 28-22-105 to apply in this case, it would have to be shown that defendants assented to the 18% interest as an additional term in their contract, by virtue of their continuing to do business with plaintiff, on plaintiff’s terms. That might not have been difficult at all to prove. Rangen, supra, taken together with this case, indicates that under the present state of the law in Idaho, Terrell could have both collected its 18% interest as claimed in its original complaint and still escaped the usury penalties. In amending its complaint to only claim 8% interest, Terrell was unduly apprehensive and underestimated this court’s ability to find ways not to enforce the usury statutes.
. See, Jarvis, Which is to be Master: A Comparison of Credit Sale and Loan, 13 Idaho L.Rev. 117 (1976). See also, Buchanan, supra, at 483, 547 P.2d at 528 (dissenting opinion of McFadden, J.).
. For a discussion of this case and the weakened effect of Idaho’s usury laws, see Wald, Usury: Is This Defense Disfavored in Idaho? 12 Idaho L.Rev. 115 (1975).
. It was apparently undisputed that plaintiffs interest charge was not agreed to by defendant. This is evidenced by plaintiff’s comptroller, who stated by affidavit that “there was no agreement between plaintiff and defendant wherein defendant acquiesced to the payment of said service charges.”