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WIENER v. J. C. PENNEY CO.

Nos. 41-48.

65 Wis.2d 139 (1974)

222 N.W.2d 149

WIENER, a member of the class of persons who have paid usurious charges to the defendant on behalf of himself and all others similarly situated, Appellant, v. J. C. PENNEY COMPANY, Respondent. TUCCELLI, individually and on behalf of all others similarly situated, Appellant, v. NELSON BROTHERS FURNITURE COMPANY, Respondent. MITCHELL, individually and on behalf of all others similarly situated, Appellant, v. GIMBEL BROTHERS, INC., Respondent. WIENER, a member of the class of persons who have paid usurious charges to the defendant on behalf of himself and all others similarly situated, Appellant, v. SEARS, ROEBUCK & COMPANY, Respondent. MATTHEWS, individually and on behalf of all others similarly situated, Appellant, v. BOSTON STORE, Respondent. MOYLAN, individually and on behalf of all others similarly situated, Appellant, v. SEARS, ROEBUCK & COMPANY, Respondent. LASIEWICZ, individually and on behalf of all other credit customers who paid defendant usurious charges, Appellant, v. NISS & SONS, INC., Respondent. DOUGLAS, individually and on behalf of all other credit customers who paid defendant usurious charges, Appellant, v. COMMUNITY STORES CORPORATION, Respondent.

Supreme Court of Wisconsin.

Decided October 14, 1974.

Attorney(s) appearing for the Case

For the appellants there was a joint brief by Warshafsky, Rotter & Tarnoff of Milwaukee, attorneys for Michael Tuccelli, Robert Mitchell, James Matthews and Thomas Moylan; Meldman & Kahn of Milwaukee, attorneys for William Wiener; Ted M. Warshafsky, of Milwaukee, and Aram & Hartunian and Pressman & Hartunian of Chicago, Illinois, of counsel; and oral argument by Ted M. Warshafsky and Aram A. Hartunian.

For the respondents there were joint briefs by Foley & Lardner of Milwaukee, attorneys for J. C. Penney Company, Inc., Gimbel Brothers, Inc., Nelson Bros. Furniture Co., and Niss & Sons, Inc.; Quarles & Brady of Milwaukee, attorneys for Sears, Roebuck & Co., Boston Store and Community Stores Corp.; Isaksen, Werner, Lathrop & Heaney of Madison, of counsel, for J. C. Penney Company, Inc.; and Hoyt, Greene, Meissner & Walsh, S. C., of Milwaukee, of counsel, for Gimbel Brothers, Inc.; and oral argument by James P. Brody of Milwaukee for J. C. Penney Company, Inc., and Nelson Bros. Furniture Co.; and John S. Holbrook, Jr., for Sears, Roebuck & Co., Boston Store and Community Stores Corp.

WILKIE, C. J.

One issue is presented by this consolidated appeal, to wit:

Is sec. 138.06 (7), Stats., constitutional?

Under sec. 138.06 (3), Stats., a borrower who pays usurious interest may recover all the interest, principal (up to $2,000), and charges paid on the loan or forbearance within two years of the date the action is commenced. The trial court held, however, and plaintiffs do not dispute on appeal, that sec. 138.06 (6) and (7) remove...

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