278 Mo. 685 | Mo. | 1919
This is an appeal from a judgment of the Cole County Circuit Court whereby the State Superintendent of Insurance is commanded to permit to be filed and to approve a ten-per-cent increase on all fire insurance rates in force in Missouri. Relators sue in behalf of one hundred and thirty insurance companies in business in Missouri.
“Whereupon relator prays that in accordance with the laws of the State of Missouri regulating fire insurance rates, this honorable court make an order requiring respondent to certify to this court within five days from the date hereof all books, papers and files relating to or filed in connection with said filing of increased rates and application for approval thereof, together with a copy of his order and finding relating to said proposed increase in rates, and that this honorable court proceed at once to judicially review de novo and in all things the said ruling and. finding of respondent, and that this honorable court hear the evidence and determine the facts as to the truthfulness of the allegations herein contained, and that upon a final hearing this court order and direct said Superintendent of the Insurance Department to permit said James A. Waterworth and said Harold M. Hess to file and publish said proposed rates and schedule of rates and said proposed increase in rates, and that they and the companies which they represent be authorized and permitted to collect in the*690 State of Missouri said increased rates, and for such other and further relief as to the court may seem just.”
The answer admits (1) the filing of the proposed increased rates and affidavits in support thereof; (2) the Superintendent’s refusal to approve the increase; (3) the filing of “a motion to reopen the whole matter,” and (4) the overruling thereof. The answer then denies the remaining allegations and, continuing, avers (1) that appellant’s power to approve or disapprove rate increases is a discretionary one and not subject to control by the courts; (2) that the court had no power or jurisdiction “through a new and independent hearing” in court to control appellant’s action in refusing to approve increased rates after he had heard and acted upon evidence offered; (3) that acquiescence hy insurance companies in appellant’s action on proposals for increased rates is a condition precedent to their doing business in this State, which condition the Legislature has imposed and the courts cannot “in an independent investigation” annul; (4) that appellant has no authority to approve a flat ten-per-cent increase of rates; (5) that within the preceding year a rate increase was approved and sufficient time had not elapsed to authorize the approval of a further increase; (6) that this proceeding is an attempt to compel appellant to act in a particular manner; and (7) that this is an effort to increase insurance rates by action of courts of the State in direct violation of Article III of the Constitution of Missouri.
The matter was referred June 30, 1918. January 6, 1919, the referee filed his report in which he found that the refusal of the Superintendent to grant the increase requested was unreasonable. Exceptions were filed and overruled. The judgment sets out the conclusions of the referee; finds that the action of the Superintendent in refusing to approve the proposed increase was “unreasonable, erroneous and in derogation to the just rights of the petitioners;” sets aside the Superintendent’s order, and adjudges that relators be per
The Act of 1915 makes reasonableness the test of rates. Section 5. (p. 315, Laws 1915) provides that rating records ‘ ‘ shall show the rate which such insurers propose to charge and collect, but any insurer . . ' . or any actuarial bureau shall be permitted to change or lower its rate or rates whenever it sees fit, provided that rates shall not be raised until at least ten days’ notice has been given by the insurance company to the Superintendent of Insurance and his approval obtained (Italics are ours.) Section 15 provides that during the pendency of an action to review an order, no insurer shall charge a'rate in excess of that fixed by the Superintendent. What respondents .seek in this proceeding is a judgment compelling appellant do approve and permit to be put in force new rates constituting a ten-per-cent increase, over existing rates. Article III of the Constitution of this State reads as follows:
“The powers of government shall be divided into three distinct departments’ — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall. exercise any power properly belonging to either of the others, except in the instanced in this Constitution expressly directed or permitted.”
The power to regulate insurance rates arises out of the same considerations Which give origin to
It is suggested that so construed the Act of 1915 is unconstitutional, at least in so far as it attempts to restrict the right of insurance companies to increase their rates. This question is not in the case before us. The single purpose of this action is to compel the Superintendent of Insurance to approve the proposed increases. The only possible basis for such a proceeding is the requirement of Section 5 of the Act of 1915, that the increase shall not be effective until it is approved by the Superintendent. This proceeding necessarily assumes the validity of that requirement. If it is invalid, this case has no foundation of any kind. In these circumstances, repondents are not in a position to assail •the constitutionality of the statutory provision upon which they made their way into this court. We are, therefore, not called upon to express an opinion upon this question. ' M
The judgment is reversed.