The opinion
David Newbern, Judge, dissenting. I agree with Judge Penix’s observation that this case falls squarely within Rule 29(l)(a) which deprives us of jurisdiction to determine cases “involving the interpretation or construction of the Constitution of Arkansas.”
It is particularly distressing to me that we refuse to certify this case to the Supreme Court in accordance with Rule 29(4)(a) because such an important question is presented and because of the obvious need for the Supreme Court to clarify and define the limits of Arkansas Savings & Loan Association v. Mack Trucks of Arkansas, Inc., 263 Ark. 264 , 566 S.W. 2d 128 (1978). Although Judge Penix did not find it necessary to say so in her opinion, she has authorized me to say she agrees with my conclusion that the $1.67 penalty or pre-payment fee charged by the appellee is usury when seen in the light of the Mack Trucks Case. Thus, with Judge Hays not participating, we reach a three to two decision on the merits of this important case which should not be before us.
Our conclusion that the Mack Trucks Case applies is based on the broad but clear statement there that “the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business.” 263 Ark. at 267-268 . We do not quarrel with the majority position that, unlike Mack Trucks, we have before us a charge which is somewhat within the borrower’s control, but that addresses only one principle stated in that case and not the one we quote. In this case, an employee of Ford Motor Credit testified the prepayment charge was made to cover the cost to the lender of the money the lender has to borrow in order to extend credit to its customer. Thus, this business risk of a loss to the lender resulting from prepayment is transferred to the borrower. This may be unlike the “commitment fee” dealt with in Mack Trucks, but I cannot see how it fails to constitute a part of overhead or the cost of doing business.
Eldred v. Hart, 87 Ark. 534 , 113 S.W. 213 (1908), was decided seventy years before Mack Trucks, and although I can certainly distinguish it and the case before us from Mack Trucks, I cannot do so in any way that reconciles them to its language to my satisfaction. I hope our Supreme Court will undertake the task, and I regret we have not taken our opportunity to reduce speculation whether they will do so.