I concur in the result. I am in complete accord with the conclusion that the debtor-creditor relation existing between the parties to which the notes in question were *Page 511 the incidents was not corrupt or tainted with usury. But, in my opinion, the provisions of the 1933 and 1937 Acts in respect to the power to deduct interest in advance at the rate of one per cent per month, or less, and in addition to receive and require uniform weekly or monthly installments are not so clear and unambiguous as to justify jetsaming the immunizing provisions of the 1939 Act.
It is true that the Helbush case does not apply. We there expressly held that interest upon the promissory note involved had not been deducted in advance and in the absence of provisions in the 1933 Act fixing the legal rate of interest chargeable and the method of its computation the provisions of Revised Laws of Hawaii 1935, section 7053, applied to the former and the principles enunciated in the Nawahi case to the latter.
The mere admission of the parties in this case, however, that interest was physically deducted in advance at the respective times of the execution of the notes in question is not sufficient to remove the doubt that arises in my mind of the efficacy of the language employed in both the 1933 and 1937 Acts in connection with the deductions of interest in advance to admit of the unqualified conclusion that the interest to be deducted is interest at the rate of one per cent per month for the duration of the loan without credit for periodic installments paid by the obligor on account of principal. And it is unnecessary to decide that question for the reason that the immunizing provisions of the 1939 Act, under the facts of this case, deprive the defendant of the defense of usury and foreclose him from the recovery of the alleged usurious payments made by him on account of the notes subject to the counterclaim. I am content to rely for the determination of the issue in the instant case upon the provisions of the 1939 Act without speculating upon the legislative intention evinced by the language of the 1933 and 1937 Acts allowing deductions of interest in advance. *Page 512