State ex Inf. McKittrick v. American Ins. Co., 36724.

• Citation: 140 S.W.2d 36
• Decision Date: 07 May 1940
• Docket Number: No. 36724.,36724.
• Parties: STATE OF MISSOURI, on the Information of ROY McKITTRICK, Attorney General, Relator, v. AMERICAN INSURANCE COMPANY, a Corporation, et al.
• Court: United States State Supreme Court of Missouri

140 S.W.2d 36 STATE OF MISSOURI, on the Information of ROY McKITTRICK, Attorney General, Relator,
v.
AMERICAN INSURANCE COMPANY, a Corporation, et al. No. 36724. Supreme Court of Missouri. Court en Banc, May 7, 1940.

Quo Warranto.

SEPARATE PLEAS TO THE JURISDICTION OF CERTAIN NAMED RESPONDENTS ARE SUSTAINED.

SEPARATE PLEAS TO THE JURISDICTION OF ALL OTHER RESPONDENTS, AND THEIR EXCEPTIONS TO THE SPECIAL COMMISSIONER'S REPORT, ARE OVERRULED.

[140 S.W.2d 37]

Roy McKittrick, Attorney General, and Covell R. Hewitt and Harry H. Kay, Assistant Attorneys General, for relator.

(1) This case being an original proceeding in quo warranto is properly lodged in this court. Art. VI, Sec. 3, Mo. Const. (2) Corporations can be ousted for violation of criminal laws by and through their officers and agents. State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1, 116 S.W. 902; State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34. (3) The inquiry being conducted in the Federal Court into alleged acts of bribery and corruption alleged to have been committed by respondents through their officers and agents does not bar an inquiry by the Supreme Court of Missouri into such alleged acts of bribery and corruption for the purpose of determining whether respondents have abused and misused the rights, privileges and franchises granted them by the State of Missouri, because (a) the parties to the inquiry in the Federal Court are not the same as the parties in the present proceeding. (b) The purpose of the inquiry in the present quo warranto proceeding is entirely different from the purpose of the inquiry in the Federal Court. (c) The relief sought in the quo warranto proceeding is entirely different from the relief sought in the inquiry in the Federal Court. State ex inf. v. Duncan, 265 Mo. 26; 15 C.J. 1163, sec. 638; People v. N.Y. City Ry. Co., 107 N.Y. Supp. 247; Gallagher v. Asphalt Co., 65 N.J. Eq. 258, 55 Atl. 259; Merritt v. Amer. Steel Barge Co., 79 Fed. 228.

Morrison, Nugent, Berger, Byers & Johns and Harding, Murphy & Tucker for respondents; William Marshall Bullitt, special counsel.

(1) The United States District for the Western District, Central Division of Missouri, has exclusive jurisdiction of the entire subject matter of the information relating to the charging, collecting, impounding, distribution, present status of the 16 2/3 per cent increase and the judicial determination of the ownership of the fund accumulated as a result of the collecting and impounding of said 16 2/3 per cent increase. State ex inf. McKittrick v. Amer. Colony Ins. Co., 80 S.W. (2d) 876; American Constitution Fire Assur. Co. v. O'Malley, 113 S.W. (2d) 795; Aetna Ins. Co. v. Hyde, 34 Fed. (2d) 192; Porter v. Investors' Syndicate, 286 U.S. 469, 52 Sup. Ct. 620, 76 L. Ed. 1231; Pacific T. & T. Co. v. Kuykendall, 265 U.S. 201, 44 Sup. Ct. 555, 68 L. Ed. 979; Prendergast v. N.Y. Tel. Co., 262 U.S. 49, 43 Sup. Ct. 469, 67 L. Ed. 858; Oklahoma Nat. Gas Co. v. Russell, 261 U.S. 293; 43 Sup. Ct. 354, 67 L. Ed. 662; Cumberland T. & T. Co. v. Railroad & Public Util. Comm., 287 Fed. 406; Augusta-Aiken Ry. & Elec. Corp. v. Railroad Comm., 281 Fed. 980; Love v. A., T. & S.F. Ry. Co., 185 Fed. 327; State ex rel. v. Williams, 221 Mo. 227; State ex rel. v. Reynolds, 209 Mo. 182; Merritt v. American Steel-Barge Co., 79 Fed. 228. (2) The superintendent of the insurance department has exclusive jurisdiction of all matters of rates charged and collected by each of the respondents on and after November 11, 1935, and an action in quo warranto will not lie to interfere with the exercise of that jurisdiction. R.S. 1929, ch. 37, Ins. Code; R.S. 1929, sec. 5670; State ex rel. Waterworth v. Harty, 213 S.W. 443; State ex rel. Mo. State Life Ins. Co. v. Hall, 52 S.W. (2d) 174; State ex rel. Carwood Realty Co. v. Dinwiddie, 122 S.W. (2d) 912; State ex inf. Walsh v. Thatcher, 102 S.W. (2d) 938; R.S. 1929, sec. 5874. (3) The allegations in the information of bribery and fraud are made directly in connection with the alleged unlawful charging and collecting by the respondents of an excessive rate for fire and windstorm insurance and no relief is prayed for in the information upon the independent ground of bribery and fraud. (4) Even if we assume that fraud and bribery are pleaded as an independent ground for ouster which, as we have seen, is not the case, the allegations in the information relating thereto are not sufficient to authorize the granting of any relief on account thereof, and therefore the Supreme Court is without jurisdiction over the issues of fraud and bribery. American Constitution Fire Assur. Co. v. O'Malley, 113 S.W. (2d) 802; Charles v. White, 214 Mo. 187; State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1; State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 70; State ex inf. v. Hadley, 218 Mo. 353; State ex inf. Gentry v. Amer. Can Co., 4 S.W. (2d) 448; 14a C.J., pp. 1107-1108; State ex inf. Gentry v. Long-Bell Lbr. Co., 12 S.W. (2d) 84; State ex inf. v. Equitable L. & Inv. Co., 142 Mo. 341; State ex rel. v. Societe Republicaine, 9 Mo. App. 119; Attorney General v. Railroad Co., 51 Miss. 608; Commonwealth v. Bank, 28 Pa. 389; State v. Minnesota Thresher Mfg. Co., 41 N.W. 1025; Gallagher v. Asphalt Co. of America, 58 Atl. 403, 55 Atl. 259; State ex rel. Mo. Pac. Ry. Co. v. Williams, 221 Mo. 227; Merritt v. Amer. Steel-Barge Co., 79 Fed. 228.

PER CURIAM:

This is an original proceeding in the nature of quo warranto on information of the Attorney General. The question now to be decided is whether this court has any jurisdiction of the subject matter of this information.

Respondents, in separate pleas to the jurisdiction, asserted that "the District Court of the United States for the Western District of Missouri, Central Division, has sole and exclusive jurisdiction of the subject matter of this proceeding and the issues with respect thereto." This court, on September 5, 1939, appointed Hon. Samuel A. Dew as Special Commissioner "to take evidence upon the plea to the jurisdiction," and "to report the evidence taken, together with his findings of fact and conclusions of law on the issue of the plea to the jurisdiction." The pleadings herein, evidence taken by the Special Commissioner, and his report, shows the following material facts on the issue of jurisdiction now involved. On October 9, 1922, Superintendent of Insurance, Ben C. Hyde, ordered a 10 per cent reduction of rates on fire, lightning, hail and windstorm insurance, effective November 15, 1922. Litigation over the validity of this order lasted into 1929. [See Aetna Life Insurance Co. v. Hyde, 315 Mo. 113, 285 S.W. 65; Id., 273 U.S. 681, 47 Sup. Ct. 113, 71 L. Ed. 837; Id., 275 U.S. 440, 48 Sup. Ct. 174, 72 L. Ed. 357; Aetna Life Insurance Co. v. Hyde (D.C.), 34 Fed. (2d) 185; National Fire Insurance Co. v. Thompson, 281 U.S. 331, 50 Sup. Ct. 288, 74 L. Ed. 881.] On August 8, 1929, after this order had been upheld, a reduction of rates to apply as of February 1, 1928, in accordance with the original 1922 order, was filed under protest by respondents. Superintendent of Insurance Joseph B. Thompson (appointed in 1929) acknowledged this filing to be under protest but notified respondents that premiums collected in excess of the 1922 order must be refunded. Thereafter, on December 30, 1929, respondents notified Superintendent Thompson that rates would be increased 16 2/3 per cent, effective February 1, 1930, and requested his approval. On May 28, 1930, Superintendent Thompson made an order denying this increase, and, earlier on the same day...