State v. Westhues

• Decision Date: 30 December 1926
• Docket Number: No. 25250.,25250.
• Citation: 290 S.W. 443
• Parties: STATE ex rel. HYDE, Superintendent of Insurance, v. WESTHUES, Circuit Judge, Respondent.
• Court: Missouri Supreme Court

290 S.W. 443

STATE ex rel. HYDE, Superintendent of Insurance, v. WESTHUES, Circuit Judge, Respondent.

No. 25250.

Supreme Court of Missouri, In Banc.

December 30, 1926.

Motion for Rehearing Denied January 24, 1927.

Original proceeding in prohibition by the State, on the relation of Ben C. Hyde, Superintendent of the Insurance Department of the State of Missouri, against Henry J. Westhues, Judge of the Circuit Court of Cole County. Writ awarded.

John T. Barker and Floyd E. Jacobs, both of Kansas City, for relator.

Bates, Hicks & Folonie, of Chicago, Ill., Hogsett & Boyle, of Kansas City, Leahy, Saunders & Walther, of St. Louis, Mo., and Cockrill & Armistead, of Little Rock, Ark., for respondent.

RAGLAND, J.

This case comes to the writer for an opinion on a second reassignment. It is an original proceeding in prohibition. The circuit court of Cole county, on July 19, 1923, in a suit then pending before it entitled Agricultural Insurance Company et al., Plaintiffs, v. Ben C. Hyde, Superintendent of the Insurance Department of the State of Missouri, Defendant, granted a temporary injunction of the following tenor:

"It is by the court ordered that the defendant, Ben C. Hyde, superintendent of insurance department of the state of Missouri, be, and he is hereby, restrained, until the further order of this court, from holding a hearing on July 26, 1923, or at any time thereafter, to consider a reduction by him in the rates of premium charged by the stock fire insurance companies in this state; and from making, or attempting to make, any order reducing the rates of premium charged by said companies in this state."

Thereafter, on November 9, 1923, the defendant in said suit (relator in this) promulgated the following order:

"To Missouri Inspection Bureau, Waterworth & Terry, Managers, Pierce Building, St. Louis, Missouri, and to All Stock Fire, Lightning, Hail, and Windstorm Insurance Companies Doing Business in the State of Missouri:

"Upon complaint filed with me that there should be a reduction in the rates charged by the stock fire insurance companies doing a fire, lightning, hail, and windstorm insurance business in the state of Missouri, and upon full investigation and hearings and in full compliance with the laws of Missouri, it appears to me that the rates charged in this state by the stock fire insurance companies, for the five years next preceding such investigation, to wit, the years 1918 to 1922, inclusive, are producing a profit in excess of what is reasonable.

"Accordingly, you and each of you are hereby notified that I have this day ordered a reduction of fifteen per cent. (15%) in rates now authorized by the Missouri Inspection Bureau and being collected by the aforesaid companies on tire, lightning, hail, and windstorm business written in the state of Missouri, which reduction in my judgment will leave said companies a reasonable profit after giving proper and reasonable consideration to the conflagration liability both within and without the state.

"The aforesaid reduction order shall take effect and be in operation on and after the 15th day of December, 1923, and shall be applied subject to the approval of the superintendent of insurance. If the companies do not within 30 days from this order of reduction submit a classification or classifications which meets the approval of the superintendent of insurance, the superintendent will apply such reduction in such manner as appears to him to be just and equitable.

"[Signed] Ben C. Hyde, Superintendent of Insurance of the State of Missouri."

Thereafter on November 16, 1923, at the instance of the plaintiffs in said cause, the defendant was cited to show cause why he should not be punished as for a contempt. After a hearing with respect thereto the court made a finding and entered judgment, which, so far as material here, was as follows:

"The court further finds that the making by the defendant of his said order of November 9, 1923, was and is a direct, willful, intentional, and contemptuous violation by the defendant of the aforesaid temporary restraining order and the aforesaid temporary injunction issued in this cause by this court, and that the act of said defendant in making, issuing, and promulgating said order of November 9, 1923, constitutes a contempt of said temporary restraining order and said temporary injunction, and a contempt of this court, and that said act of the defendant in issuing said order of November 9, 1923, constitutes resistance willfully offered by him to the lawful orders of this court aforesaid, and directly tends to impair the respect due to the authority of this court.

"Wherefore it is by the court considered, ordered, and adjudged that the said defendant is now guilty of contempt of this court in each and all of the respects aforesaid, and that the defendant, Ben C. Hyde, individually be and he is hereby fined in the sum of one hundred ($100.-00) dollars, payable December 26, 1923, and in the further sum of one hundred ($100.00) dollars payable on each day thereafter, until the defendant, Ben C. Hyde, shall, in writing, revoke and withdraw his aforesaid order of November 9, 1923, and shall file with the clerk of this court a copy of his order of revocation, duly verified by himself, and it is by the court further considered, ordered, and adjudged that the state of Missouri have and recover of and from the said defendant, Ben C. Hyde, individually, the sum of one hundred ($100.00) dollars on December 26, 1923, and the further sum of one hundred ($100.00) dollars on each day thereafter until the defendant shall, in writing, revoke and withdraw his aforesaid order of November 9, 1923, and shall file with the clerk of this court a copy of his order of revocation, duly verified by himself, and that execution issue against the defendant Ben C. Hyde, individually, in accordance with this judgment."

This proceeding was instituted by relator to prohibit respondent, as judge of the Cole circuit court, from enforcing the aforesaid judgment.

For a statement of the facts pleaded in the petition in the suit of Agricultural Insurance Company v. Hyde, and the relief, based on those facts, which the plaintiffs in that case sought, we adopt that of respondent's counsel, setting out in full, however, the stipulation and court order therein referred to. The statement follows:

"That on January 5, 1922, the relator, Hyde, acting as superintendent of insurance, ordered a 15 per cent, reduction, effective February 15, 1922, in the rates of premiums charged by stock fire insurance companies, on fire, lightning, hail, and windstorm insurance in Missouri.

"That on February 4, 1922, 149 stock fire insurance companies filed in the circuit court of Cole county their suit in equity to enjoin Mr. Hyde from carrying out the provisions of said order, and in such suit said court issued a temporary restraining order restraining the superintendent accordingly.

"That on February 14, 1922, the insurance companies and Mr. Hyde entered into a certain stipulation in said suit as follows:

"`(1) The above-entitled cause is hereby dismissed, and the restraining order heretofore entered therein is hereby dissolved, and all liability under the bond given pursuant to the conditions of said restraining order is hereby satisfied and discharged, and the surety on said bond is hereby released.

"`(2) It is further stipulated and agreed that the said superintendent of the insurance department, defendant herein, may not earlier than March 15, 1922, call a hearing to investigate the necessity for a reduction in rates charged by the stock fire insurance companies doing a fire lightning, hail, and windstorm insurance business in this state; that at such hearing, if and when called, the stock fire insurance companies will appear by counsel and will produce such evidence as may be required by the insurance department, or they may see fit to present, bearing upon such question; that at such bearing the experience of said companies in the state of Missouri for the year 1921 shall be offered in evidence and considered by the superintendent of the insurance department, together with such other evidence as may be offered in reaching his determination; that at the conclusion of such hearing the superintendent of the insurance department will make findings of fact and announce his determination thereon, and that he shall, in writing, find all essential, material, and competent matters of fact disclosed by the evidence; that he shall make the following findings:

"`(a) What was the profit of said stock fire insurance companies during the five years preceding said investigation, including the year 1921?

"`(b) What is a reasonable profit on the business written in this state?

"`(c) What per cent. of premiums received is allowed for the conflagration hazard?

"`(d) What is the basis upon which earnings in Missouri should be determined and ascertained?

"`(e) What is the ratio of expenses incurred to premiums earned in this state during said period?

"`(f) What is the ratio of losses incurred to premiums earned in this state during said period?

"`(g) What is the total amount of earned premiums during said period?

"`(3) That if, based upon such findings of fact and the determination of the superintendent of the insurance department, an order reducing the rates charged by such stock companies on all fire, lightning, hail, and windstorm insurance business written by them in the state of Missouri be made by said superintendent of the insurance department such order shall apply to all classes alike, and the said insurance companies, if dissatisfied with said order, will proceed to secure a review thereof by the trial de novo in the circuit court of Cole county, Mo.

"`(4) That no injunction shall be applied for in said matter restraining the enforcement of said order, but pending such review and until the final determination of said cause in whatever court it may be...