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"On the theory that the repair and regulation of streets is a governmental duty, it is expressly tive streets at common law in Arkansas, Calheld that the municipality is not liable for defecifornia, Connecticut, Maine, Massachusetts, Michigan, New Jersey, Rhode Island, South Carolina, and Vermont."

See, also, Id. § 2623.

The rule thus asserted, though in conflict with some judicial expression upon the subject, is supported by the great weight of authority.

ed to it, exercises a private, proprietary function for the benefit of its inhabitants alone, and known as a ministerial duty, and also discharges a governmental obligation, in the performance of which it acts as an agent of the state and for the entire public, and when a city, incorporated village, or town is employing the latter power in good faith, it is exempt from liability for damages; but, when performing the former function, the rule of respondeat superior governs in respect to an injury occasioned by the negli- The principle so adverted to is not in congence of the officers and agents of the munic-flict with the opinion on rehearing in the ipal corporation. Esberg Cigar Co. v. Port- case of Giaconi v. Astoria, 60 Or. 12, 113 land, 34 Or. 282, 55 Pac. 961, 43 L. R. A. | Pac. 855, 118 Pac. 180, though the writer did 435, 75 Am. St. Rep. 651; Shipley v. Hache- not concur therein. In that case in openney, 34 Or. 303, 55 Pac. 971; Wagner v. ing a new street an embankment of earth Portland, 40 Or. 390, 60 Pac. 985, 67 Pac. slid down upon the plaintiff's land, causing 300; Pacific Paper Co. v. Portland, 68 Or. injury, and it was ruled that the city by 120, 135 Pac. 871; Blake-McFall Co. v. Port- reason of the negligence of its officers was land, 68 Or. 126, 135 Pac. 873; Coleman v. liable for the resulting damages. The dediLa Grande, 73 Or. 521, 144 Pac. 468. cation of streets, as evidenced by a duly reIn Dyer v. Danbury, 85 Conn. 128, 81 Atl. corded plat, and the sale of lots in accord958, 39 L. R. A. (N. S.) 405, Ann. Cas. 1913A, ance therewith, does not require the imme784, 786, Mr. Justice Thayer, in distinguish-diate opening of any of the highways until ing between governmental duties enjoined in the discretion of the local authorities it upon a municipal corporation and ministerial is determined that the interests of the pubobligations performed by it, says:

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"For the nonperformance or misperformance of a merely governmental duty imposed upon a city or town it is not liable in damages unless a right of action against it is given by statute. Where, however, some special power or privilege out of which grow public duties, primarily for the benefit of its own citizens, is granted to a municipality at its request, or where with its consent some special duty not belonging to it under the general laws is imposed upon it, the case is different. In such cases the municipality is in a sense performing a private duty, and, although no liability for damages is imposed by statute for negligence in the performance of such duties, the municipality is nevertheless liable for it."

lic demand such improvements should be made. Elliott, Roads & Streets (3d Ed.) §§ 129, 570. In another section of his work this author, in speaking of the liability of a municipal corporation for negligence, says:

"Outside of the New England states and those states which follow the New England rule, the doctrine is that there is a liability for a failure to exercise ordinary care and skill in making the improvement; for, once the ministerial act is undertaken, such reasonable care and skill must be exercised as will not only make the highway safe for passage, but will prevent injury to adjoining property." Id. § 580.

When a street has once been opened and improved so as to be turned over to the state to be used by the public generally, the cost of repairing such highway is usually payable out of the general fund, and the municipality is not generally authorized to make a special assessment against abutting property to defray the expense incurred therefor. Id. § 647. When a street is being originally opened, and before it is theoretically surrendered to the state, the obligation to com

County roads and city streets and sidewalks, when once constructed, are for the benefit of all people who may have occasion to travel or pass along or across such highways, the duty to repair which is also imposed upon the municipal corporation for the benefit of the entire public, and not for the sole advantage of the citizens residing in the immediate neighborhood specially benefited thereby. A distinguished author, comment-plete the highway is only ministerial, in the ing upon this legal principle, remarks:

"It cannot be justly said that the regulation and control of highways is not a governmental matter, for it was so in the earliest years of the common law, and, indeed, long before the common law took form and force." Elliott, Roads & Streets (3d Ed.) § 496.

exercise of which engagement the city is held responsible in damages for the negligence of its officers and agents on the ground that the right of the public to the use of the street has not attached. When, however, a street is once completed and devoted to its intended use, the duty thereafter to keep it reasonably safe devolves upon the municipal corporation to see that the highway, until it is legally discontinued, remains in a suitable condition for travel. It is incumbent, therefore, upon a city to keep its improved streets in reasonable repair, and in discharging that Cor-obligation the municipal corporation necessarily exercises a governmental duty for the

"Where a public corporation," says this text writer in another section of the work mentioned, "is selected and employed as an agent of the state to perform a duty pertaining to purely state affairs, whether it be a city or a county, it cannot be liable to private action. The reason for this is not far to seek. In discharging such a state duty it stands in the place of the state as its instrument or agent." Id. § 538.

McQuillin, in his work on Municipal porations (section 2721), in discussing this

will thus be seen that the prevailing opinion | further proceedings as may be necessary not in the case of Giaconi v. Astoria, supra, does inconsistent with this opinion.

not lack the support of reason or authority.

BENSON and EAKIN, JJ., took no part in

HARRIS,

(79 Or. 184)

CARSON et al. v. SCHULDERMAN, Corp. Com'r.

In the case at bar, however, the street had been opened and improved, and the sidewalk, the consideration of this cause. which necessarily constitutes a part of the J., concurs in the result. BEAN, J., dissents. highway for the accommodation of pedestrians, had been put down, but was out of repair, so that the restoration thereof was a governmental duty enjoined upon the city for the benefit of the public in general. In failing to discharge that obligation the city engineer omitted the performance of a governmental duty by reason whereof the city of Portland is not liable for the damages which resulted from the injury.

[5] It will be remembered the court found that it was the lack of money which prevented the city engineer from making the necessary repairs. A text-writer, in discussing this subject, asserts:

"The want of funds, and of power to raise money to enforce contributions of labor, or to assess the expense of repair upon abutters, is a good defense to a charge of negligence for nonrepair, provided it is shown that all the funds applicable to such use, and all means of raising more, have been exhausted. But want of funds is not available as a defense to a charge of negligence in not erecting barriers on a dangerous street, or not closing the street altogether, when necessary." Shearman & Red. Neg. (6th Ed.)

374.

It will be observed, from the excerpt quoted, that a greater degree of effort for the repair of a street or sidewalk is demanded from municipal officers than is evidenced by the finding referred to, which is insufficient to relieve the city engineer from liability.

[6] The failure of the city auditor to mail to Mrs. Frederickson a notice of the defective condition of the walk in front of her premises as found by the court, exonerates her from accountability for any part of the damages which the plaintiff sustained.

[7] At the trial of this cause the action, by consent of counsel for the respective parties, was dismissed as to the defendants Geo. L. Baker, John H. Burgard, Ralph C. Clyde, Will H. Daly, Geo. D. Dunning, J. J. Jennings, Allen R. Joy, James Maguire, R. E. Menefee, Tom. N. Monks, John Montag, Wm. Schmeer, H. N. Wallace, Frank E. Watkins, and F. L. Wilhelm, who at the time of the plaintiff's injury composed the common council of the city of Portland, and as to A. G. Rushlight, who then was its mayor. This voluntary discharge necessarily releases each of these parties from any and all liability on account of the negligence set forth in the complaint.

The findings of fact, when tested by the provision of the charter, do not uphold the conclusions of law predicated thereon, except in respect to Mrs. Frederickson. The judgment is therefore reversed, and the cause remanded for a new trial as to the defendant T. M. Hurlburt, who at the time the plaintiff was hurt was the city engineer, and for such

(Supreme Court of Oregon. Feb. 8, 1916.) 1. MANDAMUS 88 FILING ARTICLES CHARITABLE AND BENEVOLENT CORPORATIONS-STATUTE.

L. O. L. § 6679, provides that three or more persons desiring to incorporate themselves to engage in any lawful business may do so in the manner provided by the act, which provides for the incorporation of religious, charitable, and other societies not for profit, but makes no provision for such associations issuing shares or having capital stock. Section 6684, providing for the payment of organization fees according to the amount of capital stock, excepts corporations formed for religious or charitable purposes from any fee except an organization tax of $5. Plaintiffs, the devisees of realty in trust to erect and maintain a free home for wayward girls and to incorporate with a capital stock not to exceed the reasonable value of the property devised, were directed to subscribe to all the capital stock, organize the corporation, and convey the realty to it in consideration of all the shares of its capital stock to be held by them in trust. The corporation was empowered to borrow not more than $75,000 on its note secured on the land conveyed to it to be used in maintaining the home, and was required after three years from the testator's death to transfer all the capital stock in equal parts to the different Churches of Christ Scientist in Portland chartered by the Mother Church for their use, free of any trust, except a suggestion to continue the home. Held, on mandamus by the trustees to compel the corporation commissioner to file the articles of a proposed corporation with a capital stock of $350,000 to manage and improve that the design of the corporation was charitable the realty and to carry out the testator's plan, and benevolent, authorized by L. O. L. tit. 44, c. 5, and that the commissioner must file the articles on payment of a fee of $5.

Dec. Dig. 88.] [Ed. Note.-For other cases, see Mandamus,

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In such case the reference to the Mother Church of Boston did not intend that there should be any legal connection between the churches in Portland and the Mother Church, but that there should be such recognition by the Mother Church of the churches designated to ble for any seceding organization not recognized take under the will as would make it impossiby the Mother Church to claim an interest in the bequest, and it was not necessary that such relation should appear in the articles of incorporation of the Portland churches, if that fact was made to appear otherwise.

[Ed. Note. For other cases, see Charities, Cent. Dig. §§ 18-33; Dec. Dig. 20.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In Banc. Original mandamus by Jessie M. Carson and others against H. J. Schulderman, as Corporation Commissioner of the State of Oregon. Writ issued.

ty devised; that the trustees should subscribe for all the capital stock of the corporation, and should complete the corporation and convey to it the devised property, This is a proceeding by mandamus to com- taking in payment therefor all the shares of pel defendant as corporation commissioner the capital stock which should be issued to file the articles of a proposed corporation to them jointly in one certificate to be held designated as the "E. Henry Wemme Endow-in trust for the purposes indicated. It was ment Fund." The proposed articles are as

follows:

provided that the corporation should have the right to borrow not to exceed $75,000, and to give a note therefor to be secured upon certain tracts of the property conveyed to it, and that after securing this money it should proceed to purchase a site for a maternity home for wayward girls and to build and equip it, and use the rents, issues, and profits of the bequeathed property in maintaining it and caring and providing a home for the inmates thereof without expense to them. It was provided that three years after the testator's death the trustees should

"Know all men by these presents that we, Jessie M. Carson, H. A. Weis, and J. J. Cole, all of the city of Portland, county of Multnomah, state of Oregon, have associated ourselves for the purpose of forming a corporation under the laws of the state of Oregon, and to that end to make and subscribe, in triplicate, the following articles of incorporation: Article I. The name assumed by this corporation, and by which it shall be known, is 'E. Henry Wemme Endowment Fund.' Article II. The principal office and place of business of this corporation shall be in the city of Portland, county of Multnomah, state of Oregon. Article III. The capital stock of this corporation shall be three hundred divide and transfer all the capital stock of and fifty thousand dollars ($350,000), divided in- the corporation in equal parts to the differto three hundred and fifty (350) shares, of the ent Churches of Christ Scientist of Portland, par value of one thousand dollars ($1,000) each. Or., authorized and chartered by the head Article IV. The duration of this corporation shall be perpetual. Article V. 1. The business Church of Christ Scientist, known as the in which this corporation proposes to engage is Mother Church, for their own use and benethat of buying, owing, holding, managing, im-fit, without any charge or trust whatever reproving, mortgaging and leasing the following served to testator's estate. Then follows described real property, to wit: Lots one (1), this clause: four (4), five (5), and eight (8) in block fiftythree (53) in Couch's addition to the city of Portland; and also lots one (1) and four (4), and the south twenty (20) feet of lot five (5), in block nine (9) of Couch's addition to the city of Portland, and the south one hundred and twenty (120) feet of block seventy-two (72) in East Portland, now a part of Portland, and all now being in the city of Portland, Multnomah county, state of Oregon. 2. To buy, own, hold, mortgage, lease, improve, and sell real estate as may be necessary in carrying out the enterprise for the carrying out of which this corporation is formed, and to lease property to third persons, firms, or corporations. 3. To purchase a suitable site for, erect, equip, maintain, and conduct a maternity home or lying-in hospital for the accommodation, care, and keeping of unfortunate and wayward girls, without charge therefor, in the city of Portland, Multnomah county, state of Oregon, which home or hospital shall be known as the White Shield, of Portland, Oregon. 4. To issue the promissory note of the corporation and secure the payment of the same by mortgage or pledge of any or all property belonging to the corporation, and generally to do anything necessary, proper, or convenient in carrying out any of the enterprises hereinbefore mentioned. In witness whereof we have hereunto set our hands and seals this 27th day of September, A. D. 1915."

This corporation was formed pursuant to the terms of the will of E. Henry Wemme, deceased, whereby he bequeathed certain property to the plaintiffs herein in trust for the purpose of erecting and maintaining a maternity home for unfortunate, wayward girls in the city of Portland, to be conducted without cost to the objects of testator's bounty. It was provided that the trustees immediately after the death of the testator should form a corporation with perpetual duration, to be named the "E. Henry Wemme Endowment Fund," with a capital stock not

"I hope, however, this is not directory, but merely a suggestion, that the maternity home' constructed as herein before provided shall be continued by said corporation, E. Henry Wemme Endowment Fund, perpetually, and forever, but I do not make this binding upon said Church of Christ Scientist, or upon said E. Henry Wemme Endowment Fund, a corporation, for the reason that I have implicit faith and confidence in the Church of Christ Scientist, and believe that they will be perpetual, and I realize the inability of one now living to determine what in the future might be the greatest need and benefit to suffering humanity, and therefore I have giv. en absolutely and without reservation all of the stock of said corporation of E. Henry Wemme Endowment Fund to said Church of Christ Scientist believing that they will expend the rents, issues, and profits and all the proceeds of the said E. Henry Wemme Endowment Fund in a manner so as to create the greatest relief for the greatest number of suffering humanity."

The plaintiffs tendered to the corporation commissioner the articles set forth in this statement, together with a fee of $5, and demanded that they be filed as the articles of a charitable corporation, and that defendant issue a certificate of incorporation upon

said articles.

Defendant took the ground that the articles indicated the corporation was a business corporation organized for profit, and therefore liable to pay an organization fee provided for in section 6684, L. 0.

L., amounting to $60, and the estimated license fee provided by section 6707 for the remainder of the year ending June 30, 1916, and refused the articles or to issue certificate until such additional sums should be paid. Therefore plaintiffs sued out this writ.

Joseph & Haney, of Portland, for plaintiffs. Geo. M. Brown, Atty. Gen., and J. A.

MCBRIDE, J. (after stating the facts as by the Mother Church to claim an interest above). [1] Section 6679, L. O. L., provides: "Whenever three or more persons shall desire to incorporate themselves for the purpose of engaging in any lawful enterprise, business, pursuit, or occupation, they may do so in the manner provided in this act."

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in the bequest. It is not necessary that such relation should appear in the articles of incorporation of the Portland churches if that fact is made to appear otherwise. We will not attempt in this proceeding to determine who shall take under the will, but merely whether the articles of incorporation show that the object of the incorporation is charitable, and not for profit. This is clearly shown, and, while it was entirely proper for the commissioner to require this matter to be determined by judicial proceedings, an order will be made requiring him to file the articles and issue the certificate of incorporation upon payment to him of the $5 tendered.

EAKIN, J., took no part in the consideration of this case.

STATE v. WARE.

(79 Or. 367)

(Supreme Court of Oregon. Feb. 8, 1916.) 1. CONSTITUTIONAL LAW 206-PRIVILEGES AND IMMUNITIES-USURY LAW-POWER OF STATE.

Laws 1913, c. 278, regulating the business of loaning money or credit by persons other than national banks, licensed bankers, etc., requiring a license from the state banking board no license shall be granted to any person not a to engage in such business, and providing that bona fide resident of the state of Oregon, or to a corporation, etc., until such corporation, etc., appoints a resident agent to accept service, does not violate Const. U. S. art. 4, § 2, providing that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, or Const. U. S. Amend. 14, § force any law abridging the privileges or immu1, declaring that no state shall make or ennities of citizens of the United States, as the state in the exercise of its police power and for the protection of small borrowers may regulate the taking of excessive interest and confine the privilege to residents and those subject to its process.

Chapter 5, title 44, L. O. L., provides for the incorporation of religious, literary, art, charitable, and other societies not carried on for the purpose of profit. This chapter makes no provision for such associations is suing shares or having capital stock. We think there is no doubt of the right of the trustees to incorporate under the provisions of section 6684. Under the will they could not incorporate in any other manner, and, if they could not do so under such section, the trust would possibly fail altogether. Building, maintaining, and carrying on an institution of the character mentioned is a "lawful enterprise, a business, or pursuit," irrespective of whether the parties incorporating engage in it for pleasure, profit, or charity. In the present instance the design of the corporation is purely charitable and benevolent. Its scope and articles are such as absolutely inhibit the idea of profit from any source. It is true that the fact that the corporation is one having capital stock is laid down by many authorities as the test whether or not the corporation is one organized for profit, but after all it is only evidence of that fact, and cannot be conclusive in a case where the articles themselves show that the whole capital and income of the property is to be devoted to charitable uses. [2] Whether the Churches of Christ Scientist are qualified to take the reversion of the stock as provided in the will is a question that does not arise here. If there are none in Portland so qualified, the courts will not allow the trust to fail for want of a trustee. [3] It is here stipulated, however, that the different Churches of Christ Scientist of Portland, Or., are religious bodies or associations organized and existing for the purpose of religious and educational work in said city; that the articles of incorporation of said Church of Christ Scientist do not show that said churches are charitable institutions or associations organized for charitable work; that the articles of in-ply to the legitimate business of state and nacorporation of said churches show no legal affiliation with the Church of Christ Scientist incorporated under the laws of the state of Massachusetts and commonly known as the Mother Church of Boston, Mass. We take it that by the reference to the Mother Church of Boston it was not intended that there should be any legal connection between the churches in Portland and the Mother Church, but that there should be such recognition by the Mother Church of the churches designated to take under the will as In a criminal prosecution for violation of would render it impossible for some seceding the statute making it unlawful to engage in or unorthodox organization not recognized the business of making loans at more than 10

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 625-648; Dec. Dig. 206.]

2. CONSTITUTIONAL LAW 208

LICENSES

7-CLASS LEGISLATION-LOAN BUSINESS. Laws 1913, c. 278, making it unlawful to engage in the business of making loans at more than 10 per cent. without first securing a liing by section 2 that nothing therein should apcense from the state banking board, and provid

tional banks, licensed bankers, trust companies, savings banks, building and loan associations, or real estate brokers, was not unconstitutional as discriminatory class legislation, as the classification need not be scientific or logically appropriate, and, if uniform within the class, and not arbitrary, is within the legislative discre

tion.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 649-677; Dec. Dig. 208; Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. 7.]

3. CRIMINAL LAW 395-EVIDENCE OBTAINED BY SEARCH.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

per cent. without having first obtained a license from the state banking board, certain papers and correspondence seized by the officers in de

fendant's rooms were admissible.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 877; Dec. Dig. 395.] 4. CRIMINAL LAW 1206-REPEAL AND REENACTMENT OF STATUTE-EFFECT.

Defendant was indicted, tried, convicted, and sentenced for a violation of Laws 1913, c. 278, making it an offense to engage in the business of making loans at more than 10 per cent. without having first obtained a license from the state banking board, and thereafter, and while his appeal was pending, the Legislature passed Laws 1915, c. 219, expressly repealing chapter 278, and re-enacting substantially the same provisions, but increasing the amount of the annual license fee from $50 to $100. Held, that the repeal and re-enactment did not necessitate the dismissal of the indictment and the discharge of the defendant, as every element of the law which he was charged with violating remained the law, and had never at any time since its first enactment, ceased to be the law.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3271-3277, 3279, 3280; Dec. Dig. 1206; Statutes, Cent. Dig. § 349.] 5. STATUTES 121-TITLE-CONSTITUTIONAL PROVISIONS.

Laws 1913, c. 278, entitled an act "to regulate the business of loaning money or credit by persons, firms and corporations other than national banks, licensed bankers, trust companies," etc., naturally and logically connected the state banking board and the state examiner with the administration of such law, and its provision for the issuance of a license by the state banking board, etc., was therefore germane

to its title.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 146, 173, 174; Dec. Dig. 121.]

Burnett and McBride, JJ., dissenting.

In Banc. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

E. E. Ware was convicted of the statutory offense of engaging in the business of making loans at an interest greater than 10 per cent. without having first obtained a license from the state banking board, and he appeals.

Affirmed.

The defendant was convicted of violating the provisions of chapter 278 of the Laws of 1913. The charging part of the indictment reads as follows:

G. E. Hamaker, of Portland, for appellant. Martin L. Pipes, of Portland (George A. Pipes, of Portland, on the brief), amicus curiæ. George Mowry, Deputy Dist. Atty., of Portland (Walter H. Evans, Dist. Atty., and John A. Collier, Deputy Dist. Atty., both of Portland, and George M. Brown, Atty. Gen., on the brief), for the State.

BENSON, J. (after stating the facts as above). [1] The assignments of error are numerous; the first, third, seventh, and ninth being chiefly directed to the contention that the act under which the prosecution is maintained is unconstitutional and void. This contention is first raised in the demurThe statute in conrer to the indictment. troversy contains, inter alia, the following clause:

"No license shall be granted to any such person, firm or voluntary association unless said person and the members of any such firm or voluntary association shall be bona fide resi dents of the state of Oregon, and no license shall be issued to any joint stock company, incorporated society, or corporation unless and until such company, society or corporation shall, in writing and in due form, to be first approved by and filed with the state banking board, appoint an agent, resident in the state of Oregon, upon whom all judicial and other process of legal notice directed to such company, society or corporation may be served."

The question arises: Does this provision violate the spirit of article 4, § 2, of the Constitution of the United States wherein it is provided that:

"The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states"

-or of Amend. 14, § 1, of the same document, wherein it declares that:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

for ages, and it has been uniformly held that Usury has been looked upon with disfavor the state may either regulate or absolutely prohibit the taking of usurious interest. It follows that no citizen has an inherent or common right to exact the same. This being true, the state has ample power to regulate the taking of excessive interest and confine the privilege to those whose residence within its borders renders them subject to its process. State v. Catholic, 75 Or. 367, 147 Pac. 372; White v. Holman, 44 Or. 180, 74 Pac. 933, 1 Ann. Cas. 843; Sandys v. Williams, 46 Or. 327, 80 Pac. 642. It is a fact of common knowledge that in the larger cities and towns there are men whose business it is to prey upon the necessities of the improvident and the unfortunate by lending money at exorbitant rates of interest with the effect that in The defendant Ware was the only one ar- many instances the borrower becomes the rested and tried. A demurrer to the indict- bond slave of the lender, if, indeed, he posment, for the reason that the facts therein sesses enough character to prevent his desstated do not constitute a crime, was over-peration from driving him into overt acts of ruled, and from the judgment of conviction crime. These lendings and borrowings are the defendant Ware appeals. usually so small in amount that the banking

"The said E. E. Ware, J. J. Wiesen, O. O. Grovier and J. Richards, on the 14th day of July, A. D. 1914, in the county of Multnomah and state of Oregon, then and there being, did then and there unlawfully, knowingly and willfully engage in the business of making loans of money and of personal credit upon which the said defendants did then and there directly and indirectly charge and receive interest, discount and consideration greater than ten per cent. per annum without having first and theretofore obtained and procured license from the state banking board of the state of Oregon authorizing and permitting the said defendants to engage in the said business."

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