Hartford Fire Ins. Co. of Connecticut v. Perkins

• Decision Date: 06 November 1903
• Citation: 125 F. 502
• Parties: HARTFORD FIRE INS. CO. OF CONNECTICUT et al. v. PERKINS, Insurance Com'r.
• Court: U.S. District Court — District of South Dakota

125 F. 502

HARTFORD FIRE INS. CO. OF CONNECTICUT et al. v. PERKINS, Insurance Com'r.

United States Circuit Court, D. South Dakota.

November 6, 1903

Preston & Hannett, for complainants.

Philo Hall, Atty. Gen., for defendant.

CARLAND District Judge.

This is a bill in equity filed in this court by the Hartford Fire Insurance Company, the Phoenix Insurance Company of Brooklyn the Royal Insurance Company of Liverpool, the German American Fire Insurance Company, and the Springfield Fire & Marine Insurance Company, all foreign insurance companies and corporations, against John C. Perkins, commissioner of insurance for the state of South Dakota, for the purpose of perpetually enjoining said commissioner from enforcing the provisions of an act of the Legislative Assembly of the state of South Dakota, approved March 9, 1903 (Sess. Laws S.D 1903, p. 183, c. 158), and to have said act declared unconstitutional and void, as being in conflict with both state and federal Constitutions. The act referred to is as follows:

'Section 1. Combinations Prohibited-- Penalty for Violation. Any combination, agreement, confederation, compact or understanding made and entered into directly or indirectly, by or between two or more fire insurance companies insuring property against loss or damage by fire and loss or damage from the elements, transacting business within this state, or between officers, agents or employes of any such companies, relating to the rates to be charged for insurance, regulating or fixing the minimum price or premium to be paid for insuring property located within this state, the amount of commission to be allowed agents, for procuring insurance or the manner of transacting the business of fire or other casualty insurance within this state, is hereby declared to be unlawful, and any such company, officer or agent violating the provision shall be deemed guilty of a misdemeanor, and on conviction thereof in any court having jurisdiction shall pay a penalty of not less than one hundred dollars nor more than five hundred dollars for each offense, to be recovered for the use of the general fund of the state, and any such company, corporation or association so offending shall not be permitted to transact business within this state.

'Sec. 2. Affidavit must be Made When Called For. Any fire insurance company, corporation or association desiring to transact business within this state shall, in addition to the requirements now provided for by law, furnish the insurance commissioner of this state on or before the first day of July in each year, and at any other time during the year when called upon by the insurance commissioner of this state, as one of the conditions for being permitted to transact business within this state, an affidavit subscribed and sworn to by the president or secretary or managing officer of such corporation or association before competent authority, stating that said company of which he is an officer has not violated any of the provisions of the foregoing act, naming them, and such affidavit shall be in the following form:

'State of--, County of--, ss.:

'I,--, being first duly sworn, depose and say, that I am one of the managing officers of the-- company or association, and that said association has not entered and will not enter into any combination or agreement with any other fire insurance company or companies whatsoever, by which there is any understanding of whatsoever kind or character, either directly or indirectly, tending to fix or establish a uniform price or premium for fire insurance in the state of South Dakota, or any agreement whatever, either directly or indirectly, relating to the rates to be charged for insurance within said state.

'Sec. 3. Any Officer or Employe of Insurance Companies may be Summoned to Appear before Commissioner. The commissioner of insurance of this state is hereby authorized to summon and bring before him for examination under oath any officer or employe of any fire insurance company transacting business within this state suspected of violating any of the provisions of this act; and on complaint in writing made to him by two or more residents of this state charging such company under oath upon their knowledge of information and belief, with violating the provisions of this act, said insurance commissioner shall summon and cause to be brought before him for examination under oath any officer or employe of said company; and if such examination and the examination of any other witnesses that may be produced and examined, the insurance commissioner shall determine that said company is guilty of a violation of any of the provisions of this act, or if any officer shall fail to appear or submit to an examination after being duly summoned, said commissioner shall forthwith issue an order revoking the authority of such company to transact business within this state, and such company shall not thereafter be permitted to transact the business of fire insurance in this state at any time within one year from the time of such revocation.

'Sec. 4. Testimony not to be Used against Person Making the Same. The statements or declarations made or testified to by any such officer or agent in the investigation before the commissioner as provided in this act, shall not be used against any person making the same in any criminal prosecution against him, and no person shall be excused from testifying for the reason that his testimony so given will tend to criminate him.

'Sec. 5. Repeal. All acts and parts of acts in conflict with the foregoing provisions are hereby repealed.

'Approved March 9, 1903.'

The defendant has demurred to the bill for want of equity, and the cause is now before the court after argument upon bill and demurrer. The bill alleges that complainants are, and have been for many years last past, engaged in the business of insuring property against loss by fire in the state of South Dakota regulating or appertaining to foreign insurance corporations except the act hereinbefore referred to, which as to complainants is alleged to be unconstitutional and void. The specific portions of the state and federal Constitutions which it is claimed are violated by said act are as follows: First, it is claimed that the act...