POLLOCK
District Judge.
This
suit was instituted by complainant, an insurance corporation
of the state of New York, engaged in transacting the business
of fire insurance within the state by its permission and
authority, to procure a decree perpetually enjoining and
restraining defendant, as Superintendent of Insurance, from
proceeding further under or in the enforcement of an act of
the Legislature of the state entitled, 'An act relating
to fire insurance and to provide for the regulation and
control of rates of premium thereon, and to prevent
discrimination therein, 'being chapter 152, Sess. Laws
1909, which said act took effect May 29, 1909, by which the
Legislature assumed to regulate and limit the rates which
should be charged for policies of fire insurance in all cases
except where the policy is issued by a farmers' mutual
insurance company, organized and doing business under the
laws of this state, and insuring only farm property.
The
question intended to be presented by the bill for decision is
the constitutional validity of the act. Defendant has
demurred to so much of the bill of complaint as challenges
the validity of the act. The act reads as follows:
'Section
1. That every fire insurance company shall file with the
Superintendent of Insurance general basis schedules showing
the rates on all classes
of risks insurable by such fire insurance company in this
state, and all charges, credits, terms, privileges and
conditions which in any wise affect such aforesaid rates or
the value of the insurance issued to assured.
'Sec.
2. No change shall be made in the schedules which have been
filed in compliance with the requirements of this act,
except after ten days' notice to the Superintendent of
Insurance, which notice shall plainly state the changes
proposed to be made in the schedules then in force and the
time when such changes will go into effect; and such
changes shall be shown by filing new schedules, or shall be
plainly indicated on the schedules in force at the time;
provided, that the Superintendent' of Insurance may, in
his discretion and for good cause shown, allow changes upon
less than the notice specified herein, either in particular
instances or by a general order applicable to special or
peculiar circumstances or conditions.
'Sec.
3. When the Superintendent of Insurance shall determine
that any rate made by an insurance company in this state is
excessive or unreasonably high, or that said rate is not
adequate to the safety or soundness of the company granting
the same, he is authorized to direct said company to
publish and file a higher or a lower rate, which shall be
commensurate with the character of the risk, but in every
case the rate shall be reasonable.
'Sec.
4. That no fire insurance company shall engage or
participate in the insurance of any property located in
this state unless the schedules of rates under which such
property is insured has been filed in accordance with the
provisions of this act; nor shall any fire insurance
company write any insurance at a rate different than the
rate named in its schedules, or refund or remit in any
manner or by any device any portion of the rates so
established, or extend to any insured or other person any
privileges, advantage, favor, inducement or concession,
except as is specified in such schedule.
'Sec.
5. Any fire insurance company entering into any contract of
insurance on property located within this state for which
no rate has been filed by such company as provided in
section 1 of this act, shall within thirty days after
entering into such contract, file with the Superintendent
of Insurance in such form as may be required by him, a
schedule of such property showing the rate thereon, and
such information as may be required by such Superintendent
of Insurance. Such schedule shall conform to the general
basis schedule as provided in section 1, of this act, and
when filed shall constitute the premium rate of such
company for the described property.
'Sec.
6. That all schedules and local tariffs filed in accordance
with the provisions of this act shall be open to the
inspection of the public, and each local agent shall have and
exhibit to the public copies thereof relative to all risks
upon which he is authorized to write insurance.
'Sec.
7. That no fire insurance company shall directly or
indirectly by any special rate, tariff, rebate, drawback or
other device, charge, demand, collect or receive from any
person or persons a greater or less or different compensation
for the insurance of any property located in this state than
it charges, demands, collects or receives from any other
person or persons for like insurance or risks of a like kind
and hazard under similar circumstances and conditions in this
state; and any fire insurance company violating any of the
provisions of this section shall be deemed guilty of unjust
discrimination, which is hereby declared to be unlawful.
'Sec.
8. That the Superintendent of Insurance, if he shall find
that any insurance company or any officer, agent or
representative thereof, has violated any provisions of this
act, may in his discretion, revoke the license of such
offending company, officer or agent; but the revocation of
any license as provided in this section shall in no manner
affect the liability of such company, officer, agent or
representative to the infliction of any other penalty
hereinafter provided by any other section for violation of
this act; and, provided, that any action, decision or
determination of the Superintendent of Insurance under the
provisions of this act shall be subject to review by the
courts of this state as herein provided.
'Sec.
9. The Superintendent of Insurance shall not make any
regulation or order without giving the insurance company
concerned reasonable notice thereof, and an opportunity to
appear and be heard in respect to the same,
and if any insurance company or any other person, city or
municipality which shall be interested in said order shall be
dissatisfied with any regulation, order or rate adopted by
said superintendent of insurance, said party or parties shall
have the right within thirty days after the making of said
regulation or order to bring an action against said
superintendent of insurance in any district court of the
state of Kansas to have such regulation or order vacated, and
shall set forth in the petition the particular regulation or
order complained of and the particular cause or causes of
objection to any or all of them, and a summons shall be
served upon the Superintendent of Insurance by delivering a
copy thereof to his office at the state capitol, and such
service may be had by the clerk delivering a certified copy
of said summons by mail to the said superintendent of
insurance at his office. Issues shall be formed and the
controversy tried and determined as in other cases of a civil
nature; and the court may set aside, vacate or annul one or
more or any part of any of the regulations or orders adopted
or fixed by the said superintendent of insurance which shall
be by said court found to be unreasonable, unjust, excessive
or inadequate to compensate the company writing insurance
thereon for the risk assumed by it, without disturbing
others. No injunction, interlocutory order or decree
suspending or restraining the enforcement of an order of the
Superintendent of Insurance shall be granted, provided; that
the court may permit any company complaining under this act
to write insurance at any rates which obtained prior to the
ordering of the rate complained of, by the Superintendent of
Insurance, upon condition that the difference between the
rate complained of by the company and the rate at which it
seeks to write insurance may be deposited with the
superintendent of insurance, and on the final determination
of the suit shall be paid by him to the insurance company, if
the court shall find it entitled to the same, or to the
holders of policies written by said company after the rate
complained of was ordered by the Superintendent of Insurance,
as the court may deem just and equitable. Whenever any action
shall be brought by any insurance company under the
provisions of this section within said period of thirty days,
no penalties or forfeitures shall attach or accrue on account
of the failure of the plaintiff to comply with the order
sought to be vacated or modified in said action until the
final determination of said suit. Either party to said cause,
if dissatisfied with the judgment or decree of said court,
may institute proceedings in error in the Supreme Court as in
other civil cases, and said court shall examine the record,
including the evidence, and render such judgment as shall be
just and equitable, in the premises. No action shall be
brought in any of the courts of the United States to set
aside any order made by the Superintendent of Insurance under
the provisions of this act before all of the remedies
provided for herein shall have been exhausted by the party
complaining. And if any company organized under the laws of
this state, or authorized to transact the business of
insurance in this state by the Superintendent of Insurance,
shall violate this section, the Superintendent of Insurance
may cancel the authority of said insurance company to
transact business in this state.
'Sec
10. That any fire insurance company, or any director or
officer thereof, or any agent or person acting for or
employed by such company, who alone, or with any other...
