Aetna Ins. v. Robertson

94 So. 7, 131 Miss. 343

• Court: Mississippi Supreme Court
• Decided: September 15, 1922
• Docket: No. 22671
• Status: Published

Opinions

Smith, C. J.,

delivered the opinion of the court.

Per Curiam. This is an attachment in chancery under section 536, Code of 1906 (section 293, Hemnigway’s Code), by the state revenue agent against about one hundred and forty foreign fire insurance companies and their resident.agents, for the collection from the companies of the penalties provided for violations of the state’s antitrust laws by section 5004, Code of 1906 (chapter 222, Laws of 1910; Hemingway’s Code, section 3286), because of an alleged violation of the anti-trust laws by the companies continuously since the 1st day of January, 1908. Some of the questions that arose during the progress of the cause through the court beloiv were decided by this court on interlocutory appeals, as will appear from Eure v. Taylor, 126 Miss. 155, 88 So. 514; Aetna Insurance Co. v. Robertson, 126 Miss. 387, 88 So. 883; Nugent v. Robertson, 126 Miss. 419, 88 So. 895.

The allegation of the bill of complaint setting forth wherein the companies had violated the anti-trust laws is:

That “each of them, appointed the Mississippi Inspection & Advisory Rating Bureau a corporation chartered under the laws of the state of Mississippi, domiciled at Vicksburg, Miss., to declare and fix what was the rate to be paid by the public for insuring property against loss or damage by fire in the state of Mississippi, and that the defendant foreign fire insurance companies, and each of them, entered into and became a party to an agreement and combination with each other and every other fire insurance company in the state of Mississippi to charge the public as the price to be paid for insuring property against loss or damage by fire, in the State of Mississippi, whatever price the Mississippi Inspection & Advisory Rating •Bureau should from time to time declare and fix, and that the defendant fire insurance companies did, in pursuance of such combination and agreement, from and after the 1st day of January, 1908, charge the public in the First judicial district of Hinds county, Miss., and throughout the state, whatever price or premium covering property situated in the state of Mississippi against loss or damage by fire, the amount of premium fixed by the said Bureau.”

Soon after the suit ivas begun practically all of.the defendant companies withdrew from the state, whereupon an amended bill was filed by the appellee, setting forth the withdrawal of the companies from the state, and that they had instructed their agents to remit to them all money in the hands of the agents belonging to the companies, and praying for the appointment of a receiver to take charge of the effects of and collect all money due the companies, and to hold the same to await the final decision of the case. Three receivers were appointed pursuant to this prayer, and without notice to the agents of the defendant companies, “to take charge of all the effects, accounts, choses in action, and all other assets of the defendants to be found in Mississippi, and to hold .the same and to administer the same subject to the orders of the court.” An order ivas also made directing the agénts to pay to the receivers all money due by them to the companies, which order the agents obeyed.

The defendant companies answered the bill and its amendments, denying that they had entered into the agi'eement or conspiracy set forth therein, The cause was continued as to some of the companies, but was submitted as. to the remainder of them on bill, answer, and proof resulting in a decree in favor of and discharging some of the defendant companies, on the ground that the evidence failed to sustain the allegations of the bill as to them, but against the remaining defendant companies, the appellant companies here, reciting that they “did enter into the above-mentioned agreements, confederations, combinations, and understandings on the dates set opposite the name of each defendant respectively, and did continue in said agreements, confederations, combinations, and understandings. With each and every other defendant found guilty herein, from said date up and including December 2, 1920, unless some other date and periods of time he stated below.” After setting forth the date on which each of the companies became a party to the agreement, the decree proceeds as follows:

“And the court doth further order, adjudge, and decree that the complainant, Stokes V. Robertson, State Revenue Agent, for the use of and benefit of the state of Mississippi, for the offense aforesaid, do have and recover of each of the defendants the amounts set opposite the names of each of the following defendants respectively, to-wit: [Setting forth again the name of each appellant and the amount of the penalties imposed on it, the smallest being for the sum of one thousand, three hundred and fifty dollars, and the greatest being one hundred and ninety-five thousand, eight hundred and seventy-five dollars, aggregating eight million, fifty-five thousand, seventy-five dollars.]” '

The money in the hands of the receivers appointed pursuant to the prayer of the amended bill was directed to be paid by them to the appellee.

After this decree was rendered the agents of the companies, or some of them, filed a motion for leave to file a cross-bill, alleging, in substance, that, since the companies had been adjudged guilty of having formed a trust and combine for the purpose of controlling the fire insurance business., in Mississippi, the contracts made by the companies with the agents under which these agents represented the companies in writing fire insurance in Mississippi are void under section 5003, Code of 1906 (Hemingway’s Code, section 3285); that the money here claimed to be due by the agents to their companies consists of premiums on insurance policies collected by the agents from the holders thereof under their contracts with the companies, and since these contracts are void, this money could not be collected from the agents by the companies, and consequently cannot be collected for them by the revenue agent, in this proceeding, and applied to the payment of the judgments therein rendered against the companies. The prayer of the proposed cross-bill is that the receivers be directed to return to the agents all of the money that had been paid to them by the agents under the order of the court.

This' motion ivas overruled.

The cause comes to us on a direct appeal by the defendant companies .who were- found guilty in the court below and their agents, and on a cross-appeal by the complainant. The assignment of error in the cross-appeal is that the court below erred in discharging the defendants hereinbefore referred to, with reference to which assignment it will be sufficient to say that all of us concur in holding that there is no merit therein.

The several assignments of error by the appellant companies may be reduced in substance to four, and stated as follows: (1) The court below erred in holding that the companies had agreed each with the others as set forth in the allegation of the bill hereinbefore referred to. (2) The court below erred in imposing any penalties at all on the companies. (3) The penalties imposed are so excessive as to violate the due process clauses of the state and federal Constitutions, and also Section 28' of the state Constitution, which provides that excessive fines shall not be imposed. (4) The court erred in admitting and excluding certain testimony not necessary to be here set out.

The question presented by the second assignment of error, as hereinbefore set out, is>: Can the state be charged with laches, and, if so, should it be-charged therewith here?

Judges Cook, Ethridge, and Holden are of the opinion that the evidence is sufficient to support the finding of the court below that all of the appellant companies are guilty of having entered into a trust and combine, .as alleged in the bill of complaint, except those who are shown by the evidence not to have been members of the. Southeastern Tariff Association, to-wit: The Columbia National Fire Insurance Company, Continental Insurance Company, St. Paul Fire & Marine Insurance Company, Union Insurance Society of Canton, and Fidelity Plienix Insurance Company — that as to those companies the decree of the court below should be reversed, and the bill dismissed.

Judges Anderson, Sykes, and Smith are of the opinion that the evidence is insufficient to support the finding of the court below that any of the appellant companies are guilty of having entered into a trust and combine, as alleged in the bill of complaint, and that the decree of the court below should be reversed, and the bill dismissed as to all of the appellant companies.

Judges Anderson, Sykes, and Smith are of the opinion that tlie state cannot be charged with laches. Judges Cook, Ethridge, and Holden, are of the opinion that the state can be charged with laches, and should be charged therewith here to the extent that the appellee should not be permitted to collect penalties for the full period of time that the court below found the companies had been doing business under the agreements alleged in the bill of complaint; Judges Cook and Ethridge being of the opinion that he should be permitted to collect penalties for the last six years, and Judge Holden being of the opinion that he should be permitted to do so for only the last two years.

All of us concur in holding that the aggregate of the penalties imposed on each of the appellant companies is not so great as to violate either the due process of law clauses of the state and federal Constitutions, or section 28 of the state Constitution, and, conceding for the sake of the argument that the court below erred in admitting and excluding the testimony complained of, the prejudice, if any, resulting therefrom to the appellant companies is not sufficient to require a reversal of the decree.

It thus appears that a majority of us are unable to concur in holding that there was error in any specific ruling or decision of the court below, except that we all concur in holding the evidence is not sufficient to support ■ the finding that the Columbia National Insurance Company, Continental Insurance Company, St. Paul Fire & Marine Insurance Company, Union Insurance Society of Canton, and the Fidelity Phenix Insurance Company were members of the alleged trust and combine, from which it follows that as to these companies the decree must be reversed, and the bill dismissed, but as to the other appellant companies the decree must be affirmed. Browning v. State, 33 Miss. 47.

The assignments of error by the agents of the appellant companies are, in substance, that the court below erred: First, in overruling the motion of the agents for leave to file a cross-bill; second, in appointing the receivers, without notice to the agents; and, third, in directing the agents to pay the money due by them to their companies to the receivers before a judgment had been rendered against the companies adjudging them liable for the penalties here sought to be recovered.

The court below committed no error in overruling the motion for permission to file the cross-bill for two reasons: First, the motion not having been made until after a final decree had been rendered in the cause, came too late; and, second, the proposed cross-bill presents no legal ground for "the relief sought by it.

The contracts made by the companies with their agents for the writing of insurance form no part of the agreement as to the rates to be charged for insurance which the court beloAV held had been made by the companies, but are collateral thereto ; and such contracts were held valid in McCall Co. v. Hughes, 102 Miss. 375, 59 So. 794, 42 L. R. A. (N. S.) 63, and McCall Co. v. Parson, 107 Miss. 865, 66 So. 274, which holding is in accord with the rule of the common law in similar cases. Connolly v. Union S. P. Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679; International Harvester Co. v. Smith, 163 Mich. 55, 127 N. W. 695, 30 L. R. A. (N. S.) 580, Ann. Cas. 1912A, 1022.

The agents of the companies were not entitled to notice before the appointment of the receivers, for they were not appointed to collect debts due the agents, but debts due the companies. These agents, in so far as this question is concerned, were simply debtors of the companies, and it will hardly be contended that all persons who are indebted to a litigant must be notified before a receiver can be appointed to collect the debts that may be due such litigant.

The order directing the agents to pay to the receivers all money due by them to the companies was proper, though made before liability had been adjudged against the companies in order to prevent the agents from remitting the money to the companies, and was affirmed on appeal by the companies in Aetna Insurance Co. v. Robertson, 126 Miss. 387, 88 So. 883.

Cook, J.

The State Revenue Agent exhibited in the chancery court of the First judicial district of Hinds county an original bill of complaint against all the stock fire insurance companies doing business in the state of Mississippi for violations of the anti-trust laws of the state of Mississippi, seeking to restrain the defendants from further violations of these laws, and to recover penalties for such alleged violations. The local fire insurance agents of the defendant companies in the state of Mississippi were made parties defendant to the bill of complaint for the purpose of subjecting to the demand of the complainant any and all sums of money owing by, these local agents to any of the defendants, and on final hearing a decree was entered discharging all the reinsurance companies and certain direct writing companies which had not subscribed for or purchased the rates of the Mississippi Inspection & Advisory Rating Bureau, and also awarding judgment against such of the defendants as had subscribed for the rates of said bureau, the penalties assessed against such defendants being imposed from the date each company entered the state of Mississippi and subscribed for the rates of said bureau, and being fixed at two hundred dollars per day from June 15, 1908, up to the time of the passage of chapter 222 of the Laws of 1910, in which the minimum penalty was reduced to twenty dollars per day, the penalties thereafter being fixed at twenty-five dollars per day, and from the decree assessing these penalties defendants have prosecuted an appeal, while the complainant has prosecuted a cross-appeal from the decree discharging other defendants.

The bill of complaint as amended charged that, on or about the 1st day of January, 1908, and since that date, the insurance companies named in the bill, and each of them, did enter into and become a party to an agreement and combination with each other to regulate and fix within the state of Mississippi, and the First judicial district of Hinds county, the price or premium to be paid for insuring property located therein against loss or damage by fire, and that such agreement and combination constituted a conspiracy to defraud, and was and is contrary to the provisions • of chapter 145, Code of 1906, and the amendments thereto, and had the effect and did injure the insuring public of the district, county and state. The bill further charged that this combination and agreement was carried out in the following manner, to-wit:

“That each and every insurance company did appoint and authorize the Mississippi Inspection & Rating Bureau, a corporation chartered under the laws of the state of Mississippi, with its principal place of business at Vicksburg, to declare what was the rate to be paid by the public for insuring the above-mentioned property against loss or damage by fire; that said insurance companies, and each of them, did enter into and become a member of an agreement, combination, and understanding with each and every other insurance company to charge the public as the price to be paid for insuring the said property whatever price the said bureau should declare; that said bureau would from time to time declare what price or premium should be paid by the public to the said insurance companies for insuring said property, which rate or premium was that which had been previously agreed upon by the said insurance companies, and complainant here charges that said rate or premium was so agreed upon in advance by said insurance companies before being promulgated by said bureau; that said insurance companies, and each of them, have daily since the 1st day of January, 1908, throughout the state of Mississippi, issued policies and collected premiums thereon, which premiums were those as promulgated by the said Bureau in conformity with the- said agreements, combinations, and frauds.”

The bill as amended further charged that:

“Said insurance companies, and each of them, did enter into and become a member to an agreement, understanding, and combination with each and every other insurance company to maintain the price or premium to be charged for insuring the said above-mentioned property within the said district, county, and state, and throughout the said state, after the price to so insure had been promulgated by the said bureau, and each and every insurance company has daily, since on or about the 1st day of January, 1908, maintained the said price or premium to so insure said property in said district, county, and state,- and throughout the state, as promulgated by the said bureau in pursuance to said agreement, combinations, and conspiracies to defraud.”

The bill further charged that each of the said insurance companies did agree with the others to place the control of their business of insuring property within the First judicial district of Hinds county, Miss., and throughout the state, in the power and control of the Mississippi Inspection & Advisory Rating Bureau to the extent of fixing the price or premium to be paid by the public for insuring property within' the state, and, further, that the said insurance companies had agreed one with the others that persons other than their proper officers, agents and ■employees, to-wit, the Mississippi Inspection & Advisory Rating Company, should dictate and control, and have power to dictate and control, the management of their business in the matter of fixing the price or premium to be paid for insuring property throughout the state of Mississippi; and, further, that the said insurance companies, and each of them, did enter into an agreement and combination each with the others to maintain the premiums to be charged for insuring property throughout the state, after the price or premium to so insure had been fixed by the said bureau, and that each and every defendant insurance company has daily, since the 1st day of January, 1908, maintained the price to so-insure Misssisippi property as fixed and determined by said bureau in pursuance to said combinations, agreements, and conspiracies; and, further, that each and all of the said combinations, agreements, and conspiracies, and all acts done by the defendant companies in pursuance thereto, were and are inimical to the public welfare, unlawful and criminal conspiracies, and did destroy competition in the matter of insurance rates to be paid by the public throughout the state of Mississippi.

The amended bill further charges that each of the said defendants did become á party to an agreement, combination, and conspiracy, each with the other, on or about the 20th day of December, 1920, in that they, and each of them, did combine and agree each with the other to cease further writing of policies of insurance throughout the state of Mississippi, and that "on or about the 20th day of December, 1920, and in pursuance of the, said conspiracies, each of the said defendants did cease writing fire insurance throughout Mississippi, and that since said date said defendants have written no policies of insurance within the state of Mississippi.

The bill prayed that each of said defendants be penalized for violating the anti-trust law, and that they be restrained and' enjoined from further continuing and maintaining the conspiracies set forth in the bill.

The answer of the defendants was- a direct and comprehensive denial of each and every charge of combination, conspiracy, or unlawful agreement charged in the bill of complaint, and a denial of every charge of wrongdoing or violation of law therein contained, as well as a denial that they had entered into any agreement, or done anything, which was inimical to the public welfare, which was unlawful, or a criminal conspiracy, or that they had ever, at any time, destroyed competition in the matter of rates to be paid by the public for insuring property against loss or damage by fire. After separately denying the various charges contained in each paragraph of the amended bill of complaint, the denials of the answer are summarized by a denial in one paragraph of all charges and allegations in the bill of complaint and amendments thereto, charging them or any of them with any combination, agreement, or conspiracy, either expressed or implied, with each other, or with any other insurance company or insurance companies in Mississippi or elsewhere, to fix the rates of premium or price to be paid within the state, or at any other place, for insuring property against loss or damage by fire, or agreeing to accept the rates fixed or declared by the Mississippi Inspection & Advisory Rating Company or any other party whatsoever, or to place the control or the power to dictate and control or manage their business or the business of any of them to any extent in the power of the said rating bureau or any other company or any other party than themselves, their proper officers, agents, or employees, or to cease writing insurance and issuing policies in the state of Mississippi, or to cancel policies, or to create a monopoly, or to do any act in restraint of trade or any other act inimical to the public welfare or violative of the laws of the state of Mississippi. The answer of defendants then contained the following statement:

“Defendants admit that the rates and premiums charged by them in Mississippi were substantially uniform as to such risks or property which each undertook to insure against loss or damage by fire or otherwise, but the defendants aver that the fact that the rates were thus practically and substantially uniform arose not by reason of any agreement, combination, or conspiracy whatsoever among them, or with each other, or with any party whatsoever, to fix rates or premiums, but from the necessities and exigencies of conducting their business efficiently and economically for the benefit of the insuring public, as well as themselves.

“Defendants would show that rates and premiums charged for insurance, to be reasonable and fair, must be more or less uniform; in other words, that what is a reasonable rate for one insurance company must necessarily be a reasonable rate for all other insurance companies acting under similar circumstances and conditions, and therefore uniform. Long experience has shoAvn that uniformity of rates is essential to the proper conducting and carrying on of the business of fire insurance, as it is for all other kinds of business which affect the public generally.”

The answer of defendants then set up affirmatively that some of them — in fact, most of them — during the time they had done business in the state of Mississippi had subscribed to or made contracts with the said Mississippi Inspection & Advisory Rating Bureau to furnish them or their agents in Mississippi from time to time with rates and other information pertinent to and which might be of assistance to defendants in fixing reasonable and fair rates for insurance; that said rating bureau was incorporated under the laws of the state of Mississippi, and was authorized by its charter as folloAVs:

“To inspect risks, classify and promulgate advisory rates of insurance for the public on all classes of property subject to insurance, both fire and marine, and to suggest a proper means of construction and maintenance and protection to buildings so as to prevent as far as possible waste from fires, and to reduce the price of insurance on same for the benefit of all parties interested: and for said purpose shall be authorized to print and sell in printed form rates and suggestions so made and to otherwise charge reasonable fees for its services.”

The answer further averred that the Advisory Rating Bureau was incorporated in 1903; that it was not an insurance company in any sense; that it was not organized, or suggested, or controlled, now or at any time, by the defendants, or any of them; that none of the defendants have any interest in said company as stockholders or otherwise; that the defendants, and none of them, in any way, or to any extent, control the Advisory Rating Bureau, and that said bureau does not, to any extent, control the defendants, or any of them, in the matter of their business carried on in the state of Mississippi, but that each of the defendants, acting independently, use these rates, and that in using the advisory rates of the rating bureau such of the defendants as did use them acted independently, and the use of the rates was purely advisory. The answer then contained the following statement:

“Defendants would show that the rates advised by said Advisory Rating Company are not provided alone for the benefit of the defendants or other insurance companies, but are provided for the general public; in other words, for all parties interested. Defendants are informed and believe, and so charge the fact to be, that the primary purpose of the establishment of the said rating company was to protect the public against unjust discrimination in rates, and to prevent, as far as possible, waste and expense, and to reduce the price of insurance to all parties interested to its actual value. In other words, the primary purpose of this rating company was for the protection of the insured, and for the purpose, as far as possible, of providing for just, reasonable, and uniform rates under similar conditions, and that the services of said rating company are to a large extent used by the public, the insured, and have been largely instrumental in harmonizing the dealings of the insurance companies, your defendants, with the insured, and reducing rates and lessening risks.”

The defendants then alleged that the amount of insurance that can be written on any particular risk by any one of them is limited in amount, and that, in a large number of cases, in order to give the proper protection to a particular piece of property, it becomes necessary for two or more insurance companies to write insurance on the same property, and in many cases the insured enlisted the services of the said rating bureau to determine for them what the rate should be, and to advise them how their property should be provided with proper fire protection in order to secure the lowest rate, and that it was the general custom throughout the state of Mississippi for the insured to demand of the defendants the rates advised by the rating bureau; that, in order to meet the requirements of the insuring public, it was necessary for the defendants to use the rates and information furnished by the said rating bureau, and that their rates should be practically uniform, but that this was due to the necessities of the case, and not to any agreement or conspiracy on the part of defendants to use the said rates or have uniform rates.

The answer then averred that experience had shown that the said rating bureau was reliable and efficient, and that rates advised by it were just, reasonable and fair; that it was not practicable, except at great expense, for them to employ each its own experts to determine the character of the risk and the rate to be charged, and that such practice would tend to confusion, uncertainty, inequality of rates, waste, and useless expense to them and to the public; that the use of the rates promulgated by the said rating bureau had given general satisfaction to the public; that the fact that the agents of many of the defendants throughout the state of Mississippi have been using rates advised or information given by said rating bureau has resulted in practical and general uniformity of rates, but that the use of these rates by them or their agents was not by reason of any agreement, combination, or conspiracy on their part to fix rates or the price to be paid for insurance; that they were acting at all times upon their independent judgment, for the purpose of adjusting their rates to a fair and proper standard, and stabilizing, as far as possible, the insurance business, and giving the public the protection for which it paid at a fair and reasonable price.

The answer further averred that during all the years that they had been in business in the state their practice and methods of doing business with the public had been •without concealment on their part, but were well known to the public generally, and to the officers of the state, and especially to the Insurance Commissioner; and it also contained the following statement:

“Defendants would show that the Insurance Commissioner is clothed by the statute with broad and sweeping powers to investigate the affairs of all insurance companies, and to issue and revoke licenses of all insurance companies guilty of any violation of any of the laws of the state of Mississippi obligatory upon them; that through all these years the Insurance Commissioner knew and approved the use of uniform rates of insurance companies insuring property in the state of Mississippi, and approval' of the use by them of the rates and information furnished by the rating company; that the rates charged by the defendants and their method of business and their practices were known to the Insurance Commissioner, and were known, or could be known, to the public generally, and that at no time has the Insurance Commissioner objected to the defendants using uniform rates or using rates furnished by said rating company, which rates were on file in his office.”

The answer also contained the following .allegation:

“The defendants aver that in the use of the rates and information furnished by the Mississippi Rating Bureau, and the endeavoring to have their rates fair, just, and reasonable, they were at all times on their own initiative and their own judgment in the conduct of their business, as they had a perfect right to do, and the defendants aver that to deny them the right to use the rates furnished by the said Advisory Rating Company, or any other company, or the use of such information as they could obtain in the fixing of just and reasonable rates while the said rates were sold under the authority of the state of Mississippi, and were purchasably by and available to the public generally, and to subject the defendants, or any of them, to cumulative penalties for all the years mentioned in the bills of complaint, or to any penalty, for carrying on their business in the manner in which they were conducting it, with the sanction of the officers of the state, the Insurance Commissioner, clothed with special powers and the duty to enforce, as to the defendants, any and all of the laws of the state of Mississippi obligatory upon them, and to revoke their licenses, would be against good conscience, unreasonable, unjust, and grossly oppressive to your defendants, and would also be violative of the Constitution of the United States, in that it would be depriving your defendants, and each and every one of them, of their liberty and property without due process of law, and to deny to them, and to each of them, the equal protection of the law.”

The answer of defendants admitted that they had ceased to write fire insurance in the state of Mississippi, but denied that such action was taken in pursuance of any agreement, understanding, combination, or conspiracy with each other or among themselves for the purpose of monopolizing, or tending to monopolize, the insurance business in the state of Mississippi, or any part thereof, but that such action upon the part of the defendants as had been taken was done independently, and on behalf of each company on its own independent judgment and discretion, and not as the result of or in pursuance of any combination, understanding, or agreement among the said defendants, or any of them, that they would cease to write insurance, or to cancel policies already issued, in the state of Mississippi.

The reinsurance companies likewise filed a joint and separate answer, in which each and every charge of agreement, conspiracy, combination, or wrongdoing was specifically denied; and, in addition thereto, the reinsurance companies, defendants, alleged that they did not enter into or make any contract of insurance in the state of Mississippi; that they had at no time been engaged in business in the state of Mississippi; that all of their transactions were with insurance companies, and took place outside of the state of Mississippi; the allegation in respect thereto being as follows:

“Your defendants would show that they have no agents in the state of Mississippi except such as they are required by the law of the state of Mississippi to have for the service of process, but they have no agents engaged in the state of Mississippi, and never have had any, writing policies of insurance or collecting premiums; that all'of their transactions are with the insurance companies, and all take place out of the state of Mississippi; that they have nothing whatever to do with the fixing of rates or premiums to be paid for insuring property in the state of Mississippi; that they have ,no connection with or never had any connection with the Mississippi Advisory Rating Bureau, or any other rating company, by contract or otherwise; that they have taken out licenses as other insurance companies in the state of Mississippi, but that was owing to the fact that they were required to do so by the laws of the state, for the reason that they were dealing with insurance companies which issued policies upon property situated in the state of Mississippi.”

Within the limits of this opinion it is impracticable to make a detailed statement of all of the testimony contained in the thirty-five bound volumes of the record, as well as the numerous and voluminous original depositions and. exhibits filed in this court. Many of the facts which we consider important and controlling in the decision of this cause are undisputed, and the facts necessary to be here stated may be summarized as follows •

In the year 1882, there was organized in the state of Georgia an association of fire insurance companies known as the Southeastern Tariff Association, the purpose of which was “to organize and maintain local boards and to establish and enforce adequate rates.” This association adopted and promulgated a “tariff of rates,” as well as a schedule of uniform commissions of local agents, to be applied and enforced in the territory included within the jurisdiction of the association. The members of this association bound themselves by agreement to observe and enforce the rates adopted and promulgated through this association, and since that date rates agreed upon and adopted by the insurance companies have been used and enforced within the territory served by this association. The jurisdiction of this association was extended to include the state of Mississippi in July, 1890, and from that date to the year 1900 these agreed rates of the insurance companies were used and enforced in the state of Mississippi through the medium of the Southeastern Tariff Association. ' Prior to the year 1900, there was instituted in the courts of the state of Mississippi certain litigation charging this association with violations of the anti-trust laws of the state. In the year 1900 certain additional antitrust legislation was enacted by the Mississippi legislature, and thereafter, in settlement of the litigation against it, this association entered into an agreement with the attorney-general to withdraw from Mississippi, and pursuant to this agreement it retired from the state during the year 1900.

After the withdrawal of the Southeastern Tariff Association in 1900, and until the Mississippi Inspection & Advisory Rating Bureau began operations in 1906, the local agents in Mississippi had no rates except records of former policies issued, the specific ratings, the schedules, rules for construction, etc., previously furnished and still remaining in their hands, and also the schedules of the Southeastern Tariff Association occasionally distributed among the local agents by individual insurance companies, and, since there was no system in force for the enforcement of rates, there was no uniformity of rates in Mississippi, and the condition prevailing during that period in reference to rates is described by the witness Weille as chaotic.

It appears that the idea of inspection bureaus for states in which compacts were prohibited was first conceived by the Southeastern Tariff Association in the year 1901, as shown by a resolution adopted by the association providing for the organization of such bureaus in noncompact states, but providing that such work should not be undertaken in Mississippi until allowed by the officers of the law. In 1903 A. A. Weille, of Vicksburg, Miss., and three other citizens, obtained a charter of incorporation from the state of Mississippi for the Mississippi Inspection & Advisory Rating Bureau, the purpose for which this corporation was formed being stated therein to be as follows:

“Section 2. The purpose for which said corporation is formed are as follows: To inspect risks, classify and promulgate advisory rates of insurance, both fire and marine, and to suggest a proper means of construction and maintenance and protection to buildings so as to prevent as far as possible waste from fires, and to reduce the price of insurance on same for the benefit of all parties interested ; and for said purposes shall be authorized to print and sell in printed form the rates and suggestions so made and to otherwise charge reasonable fees for its services.”

Although this rating bureau was organized by Mr. Weille in 1903 he secured no subscriptions from insurance companies for several years. On September 15, 1906, in response to an inquiry addressed to him by the Insurance Commissioner, the attorney-general gave it as his opinion that information compiled and printed by the said rating bureau could not be construed into a violation of the Mississippi statute against trusts and combines, unless there was some combination, contract, understanding, or agreement, expressed or implied, among the companies, either directly or indirectly, or through the medium of the rating bureau, or between the companies so purchasing and the rating bureau, to adopt and use the rates and data so purchased as an agreed basis upon which the cost of insurance should be regulated, and that, as long as there was no such agreement by which the price of insurance should be controlled or regulated, the transaction was a legitimate one, and in no way inimical to the public welfare.

A copy of this opinion was furnished each fire insurance company doing business in the state of Mississippi, and thereafter a large number of them subscribed for the rates and services of this rating bureau, the first subscription being obtained in October, 1906, the contract between each insurance company and the rating bureau providing that, in consideration of one per cent, of the gross premiums in Mississippi, the rating bureau agreed to furnish to the insurance company and its agents all its advisory rates to1 be made upon property in Mississippi, and that it was expressly understood that there was no obligation, express or implied, direct or indirect, upon the part of the subscriber to observe or maintain the rates.

This contract between the rating bureau and the insurance companies did not call for general basic schedules, but only for specific rates, and from 1906 until about August, 1908, only specific rates on particular property were furnished by this bureau to local agents and subscribers, and these specific rates were based principally upon schedules of the Southeastern Tariff Association and the Louisana Fire Prevention Bureau,.the schedules of the Louisiana Bureau being practically identical with those of the Southeastern Tariff Association. A basic schedule is a division of the fire risks into classifications with a basic rate, 'together with the charges for deficiencies which tend to increase the hazard, and with credits for improvements or standards of construction which lessen the hazard; and the basic rate entering into the preparation of the schedule is made up of the fire hazard, which is scientific, and also all expenses and contemplated profits. A specific rate is arrived at by a simple application of tbe basic schedules to a particular piece of property and this involves a mere inspection and application of the fixed charges to the condition and location of the property.

On January 1, 1908, the Southeastern Tariff Association issued a revised book of basic schedules, which contained rules for construction, rules for classifying towns, classifying and inspection of buildings and manufacturing establishments, all kinds of rules and forms used or required in carrying on the fire insurance business, and a division of property into classes, such as dwellings, mercantiles, cotton risks, refineries, cotton seed oil mills, etc.; the book containing some five hundred classifications, with a basic rate, each including charges for' deficiencies and credits for improvements or high or improved standards of construction.

About June, 1908, the Mississippi Inspection & Advisory Rating Bureau, acting through its secretary, applied to the Southeastern Tariff Association to purchase copies of their basic schedules for 1908, and the association, acting through its secretary, refused to sell the books or schedules to the Mississippi Bureau. Thereupon, on June 10, 1908, the Mississippi Bureau entered into a contract with the Lester Printing Company, a publishing house which had originally printed the 1908 book of schedules for the Southeastern Tariff Association, to print for the Mississippi Rating Bureau one thousand copies of these books for which the said rating bureau paid one dollar per volume. When these books were delivered to the office of the rating bureau at Vicksburg it. first had printed all of the amendments to the schedules which had been adopted by the Southeastern Tariff Association since the original publication of the book, and attached all of these amendments to the book. It then cut out of these books clause 4 on page 2 thereof, which reads as follows :

“Any agent who shall write, place or cause to be placed a risk, or who shall bind or issue a policy, at less than the rates herein authorized, or in violation of these rules, will be required to cancel the same and will not be permitted to write on said property for one year thereafter.”

These books were then numbered, and upon the flyleaf of each of them was stamped the following:

“This book is the property of the Mississippi Inspection & Advisory Rating Company, of Vicksburg, Mississippi, and same is loaned subject to recall, as general information on standards for construction, equipment and' protection. The contents of this book must be considered as advisory information only, and no part of the book shall be considered as obligatory or binding on the part of any one. [Signed] Mississippi Inspection & Advisory Rating Company, Vicksburg, Mississippi.

One of these books was then furnished to each local agent in Mississippi, and a copy furnished to the home office of each insurance company which was a subscriber to the said rating bureau, the book being identical with the book of schedules and amendments of the Southeastern Tariff Association, with the exception of the stamp on the flyleaf, the number, and the paragraph cut out of page 2 thereof. The local agents were required to sign a receipt in the following form:

“Number-:. Copy of Standards for Construction and Equipment,” issue of January 1, 1908, has been received. The book shall bé considered as containing advisory information, and will be held subject to recall, it being understood that same is not transferable, nor obligatory.”

It further appears from the evidence that the rating bureau never at any time contracted to furnish schedule rates to the insurance companies, and that this bureau was not able to make schedule rates; that it did not and could not make basic rates, but adopted and applied the Southeastern Tariff Association schedules and rates bodily, and these basic rates were sold to the appellants, who had been, and were then, using these rates by agreement elsewhere; that, after the rating bureau distributed the Southeastern Tariff Association’s schedules, the insurance companies furnished their agents with no other rates except these schedules and the specific rates which were made by application of these Southeastern schedules to particular property; that when policies were received at the office of these insurance companies the rates were checked by the Southeastern Association’s schedules, which had been adopted and promulgated by the rating bureau for use in •Mississippi; that from time to time the Southeastern Tariff Association adopted amendments to its schedules, many of which were adopted in whole or in part by the rating bureau at the same time or shortly thereafter; that in the year 1918 the Southeastern Tariff Association, or the Southeastern Underwriters’ Association, as it was then called, issued a new book of schedules, while shortly thereafter — that is to say, in the early part of 1919 — the rating bureau also had printed a new book of schedules; that, while this book differed in some material respects from that previously issued by the Southeastern Tariff Association, it was based upon and largely copied from the book of the Southeastern Association.

It further appears that the 1908 schedules of the Southeastern Tariff Association, which had been prepared in the 'councils of the insurance companies by agreement, were applied by the rating bureau in specifically rating property in Mississippi, and, as fast as these specific rates were made, they were furnished to the local agents in Mississippi and to the companies; that a local agent, writing a policy of insurance, would deliver the policy to the assured, and forward to the home office of the company what is known as a daily report; that this daily report contained the amount of insurance carried, the total premium, the name of the assured, the location of the property, the occupancy, the material of which the building was constructed, and other relevant facts to enable the officer of the company who examined the risk at the home office to locate the property on the map and to compare the rate with schedules and specific rates in the possession of the company; that the schedules in the possession of the companies, and with which these daily reports were compared, were the schedules of the Southeastern Tariff Association, and the specific rates in their possession were rates made by an application of the same schedules; that, in writing policies on property that had not been specifically rated by the rating bureau, the local agents directly applied the schedules to the specific risks, and the same were checked as to correctness by the companies with the book of schedules in their home office; that, when the daily reports of policies from Mississippi were checked with the schedules and the rating bureau’s specific rates, as a rule, if the policy was written at a rate less than the rating company’s rate, the insurance company required the rates to be raised to the rating company’s rates, or the policy canceled.

It further appears that, from and after 1908, the specific rates made by the rating bureau by the application of the Southeastern Association’s schedules were used with practical uniformity. Witnesses Yerger, of Jackson, Bourgeois, Boberts, and Miss Benthal, of Canton, and Becker, of Brookhaven, all testified that the only rates furnished them by the companies they represented were the rating-bureau’s rates; that they had to have rates to go by, and were not capable of making rates themselves; that the rates furnished by the rating bureau were purely advisory as to them, and that in the use of these rates they acted upon their own independent judgment; that they never received any direct instructions from the companies to enforce the rates of the bureau, but that they considered these rates fair rates; that they sometimes corrected a rate where it was apparent that the rating bureau had made an error— that is to say, had charged against a risk a deficiency which did not exist, or failed to credit it with one that had been removed — but that usually they followed the rates of the rating bureau; that when they wrote policies the rates were checked at the home office of the company, and that, as a rule, if policies were not written according to the rating bureau’s rates, and the variation was not satisfactorily explained to the company, they would be required to either cancel the policy or obtain the schedule rates thereon, and it was agreed in the record that all the other local agents in the state who were not introduced as witnesses, several hundred in number, would testify, in substance, to the same facts as testified to by these five witnesses.

Mr. Yerger, of Jackson, a witness for appellee, testified that he never received any direct instruction from any of his companies to enforce the rates of the rating bureau, but that he wrote all of his business at these rates, unless the property was entitled to a correction.

F. Y. Becker, of Brookhaven, testified as follows:

“Q. Did they take any of your business or did they ever take off from your books any business through that sort of method? A. I have lost several policies that way, I think. Q. Did you find it out as a fact? A. In one case I did; yes. Q. What did you do in that case? A. Nothing; I let it go. Q.'Did you say anything to your companies about it? A. No> sir; the fellow was a friend of mine, and I knew if I made him pay a higher rate he would always have it in for me, so I let it go. For that matter, it might have been an error; but it was not any of my business. It might not have been cutting a rate.”

Mr. Bourgeois, a witness for appellee, testified as follows :

“Q. So far as you know has any policy ever been written and taken out of your office because some agent cut the rate? A. I have been told that by others on several occasions. Q. Did you make any complaint? A. I could not get the specific names of the company that it was written in, and the particular rate that it had been written at, but I was told by the assured in several cases. Q. What would you have done if you had gotten the information? A. I Avould have taken it up with the companies and tried to have it corrected? Q. What companies? A. The companies that lost that business. Q, The companies that you represented would have taken it up with the other companies? A. Sure; that is all I can do. Q. State whether or not it is considered inethical in the insurance business to absolutely cut a rate? A. It is considered inethical.”

B. L. Roberts, of Canton, a witness for appellee, testified as follows:

“Q. But is it your custom to complain to some general agent of one of your companies or to your company when a rate has been cut and you know it? A. No; first I take it up with the agent. Q. Who is that; the local agent? A. Local agent whom I had reason to believe at the time had made such rate. I take it up with him on the basis of his possibly having made an error in his making up of the rate, because all agents who have any intelligence whatever know that a case of plain, simple cutting in order to get business, because they know for themselves it would be suicide so far as their business is concerned. Q. Is it not a fact that it is considered wrong to do that among some agents, and inethical? A. It is ridiculous and unbusinesslike, and it is from that point of view that I would not do it.”

Miss Maggie Benthal, a witness for appellee, testified as follows.:

“Q. State from what source you obtained your rates for your companies. A. From the rates of the rate book. Q. What rate book? A. Mississippi Advisory Rate Book. Q. Did you follow those rates ? A. I followed them as well as I could; sometimes I stuck to them, and sometimes I didn’t. Q. In case you didn’t, was it by error or by judgment? A. Yes sir; by error, I reckon; I never did-profess to be a professional insurance agent. Q. You always follow the rates as near as you could? A. Yes; I did follow them as well as I could. Q. You never cut a rate purposely? A. No. Q. It is considered inethical to cut a rate, is it not, in agents? A. I do not know that it is considered inethical. Q. It is looked on as bad, is it not? A. I do not know that it is looked on as bad; the companies would check the rates over closely, and sometimes an agent gets by with a rate and sometimes he don’t. Q. When the companies catch up with them, what do they do? A. They might call for an adjustment of the rate. Q. From whom; who adjusts the rate? A. I would. Q. How would you do that? A. Just take it up with the assured, and tell him that I would have the company’s rates.”

R. H. Shackleford, insurance agent and witness for appellee, testified as follows:

“Q. How did you know to go by the book? A. I dare say after our appointment we received the book from the Advisory Rating Company, and — I will have to search my memory; I know that I have always known we had to follow rates of that kind, that is, the advisory methods of rating buildings in this state. Q. Have you received instructions at all from your companies with reference to rates? A. Well, several times I made mistakes in getting the rates, in adding certain charges, and in deducting certain charges. Q. What happened then. A. They informed me I must have been mistaken in using a certain rate when making reductions or making certain charges for such things as shown on the map. For instance, I failed to show a garage and show the proper charge for that garage exposure. Q. In that event, what was your .duty? In that event, I would add the additional amount, and correct it, and collect from the insured.”

L. A. Smith, a witness for appellee, and a former local agent of some of the appellants, testified as folows:

“Q. When if you found one your competitors cutting rates, what would you do? A. I would sometimes go to the competitor, and tell him he was cutting the rate, and ask him to correct it, or I would complain to the company that lost the business. Q. What would happen when y'ou did go to the competitor? A. Well, sometimes it would be redressed, and sometimes it wouldn’t. Q. When it wouldn’t be, it would be on what grounds usually? A. On the ground that the rate was justified. Q. What do you mean by justified? A. That some deficiency had been corrected in the schedule, justified reduced rate, and that I didn’t know anything about it. Q. When you would complain -to the agent of your own company, who lost the business — to the agent of the company, the special agent, or whoever you complained to, of the company who lost the business — ■ that some agent cut a rate, what happened then? A. Sometimes the other agent would advance his rate to the correct rate, and sometimes I never did find out what happened. Sometimes the assured would get disgusted on account of being compelled to go back to the higher rate, and give me back the business, and sometimes I never did find out what happened. Q. I will ask you this: Was your course of business the same with reference to all companies through the entire time you were in business? A. My course of business with reference to making rates? Q. Your method of business yes; with reference to making rates? A. My course of business was the same from start to finish; but I never made a rate.”

Mr. A. Johnson, of Clarke county, a former member of the board of supervisors of Clarke county, testified that while he was a member of the board of supervisors the board decided to advertise for bids for insurance on the county courthouse; that Mr. Terral, a local insurance agent at the county seat, told him it would do no good; that the bids would all be for about the same; that the board did advertise for bids, and received one bid at a cheaper rate than the others; that when the bids were read out Mr. Terral, the local insurance agent, charged that the agent filing the lower bid was giving the county a portion of his commissions, and stated that it was a violation of the law, and that he was going to have him indicted, and that the policy, if issued, would be canceled; that the policy issued at the lower rate was canceled, and thereafter the agent who secured the business placed the policy in the company represented by Col. Street in Meridian; that Col. Street told the witness that, if the board of supervisors let it be known about the cut rate, the policy would be canceled; that he was instructed by Col. Street to keep the matter quiet, and in order that no one would find it out, the policies were left in the custody of Col. Street; that when this policy expired the board again advertised for bids, and awarded the insurance to the same agent who had -secured it before; that this agent suggested to the board not to let the other agents see the policies, and to instruct the clerk of the board not to show them, stating that, if the other agents found out what companies the insurance was in, the policies would be cancelled.

Mr. E. O’Brien, president of the Jackson Lumber Company, a witness for appellee, testified that at one time he gave his entire line of insurance to the agency of Nugent & Pullen in consideration of a rate different from the established rate or the rate that was advised by the rating company; that after a lapse of eight or ten months Mr. Nugent, of the firm of Nugent & Pullen, informed him that he could not carry the insurance any longer at that rate; that he would have to cancel out or increase his rate to the established rate of two dollars and eighty cents or two dollars and ninety cents, as pressure had been brought to bear so strongly upon his company that they were demanding that he either cancel or increase his rates.

Hamilton Sivley, a witness for appellee, testified that the only rates given him were the rates of the rating bureau, and that these rates were not advisory, as far as he was concerned, but the use of them was obligatory, and that, whenever he tried to cut the rate, the fate was invariably raised by the companies he represented to the rate of the rating company.

Mr. A. D. Calloway, a witness for appellee, testified that his companies were all board companies, and that the board companies required the agents to adhere to the rules and rates of the rating bureau.

Mr. Fred Nelson, a witness for appellee, and local agent for some years for a number of the appellants in Jackson, testified that in 1915 the rating bureau changed term policies by requiring the policy holder to pay two and one-half annual premiums for a three-year policy, instead of two, as formerly, and requiring the policy holder to pay four annual premiums for a five year policy, instead of paying three annual premiums therefor, as formerly; that the anticipated slip making these changes was sent to the agents in Jackson just about the time that, under the rating company’s rules, the city was to be raised from a second to a first-class city, wbicb would entitle all the property in the city to a big reduction, and that the local agents of Jackson wrote to the rating bureau asking permission to withhold this increase in term rates until the city went under the first-class classification.

Mr. A. A. Stone, a resident of Bentonia, and witness for appellee, testified that in 1919 he took out a policy of insurance with Barnwell & Barber, local agents at Yazoo City for some of the appellants; that he made complaint to Mr. Barber in reference to the amount of the premium charged him on this policy, and asked if the rate was not exhorbitant; that Mr. Barber admitted that he had some grounds for complaint, but stated that the policy was written at the correct rate for one year, and that he had no authority over the rates, but had to use the rating company’s rates on these policies.

Mr. W. C. Wilkinson, a citizen of Jackson, testified that in 1920 he applied to Mr. Isadore Dreyfus, a local insurance agent of some of the companies, for a policy of insurance on a dwelling in the city of Jackson, and that he was quoted a rate which he thought was excessive; that he discovered they were charging him for a deficiency which did not exist, and that he requested Mr. Dreyfus to inspect the property and reduce the rate; that Mr. Dreyfus did inspect the property, and stated that he believed the witness was right, but that he had nothing to do with rates; that the rates were fixed by a concern in Vicksburg, and the agents simply adhered to the rates that were furnished them; that he then applied to Mr. Yerger, a local agent, and was quoted about the same rate as that quoted by Mr. Dreyfuis; that' he told Mr. Yerger he believed he could get a better rate, and that Mr. Yerger replied that he could not do so, and, if he did, the policy would not be accepted, but would be canceled.

Mr. Thad B. Lampton testified as follows:

“Q. Have you ever attempted during that thirty years to find out if you could get a cheaper rate from one agent than you could from another? A. Oh, yes. Q. Have you ever been able to do it? A. Yes. Q. What companies were they that gave you the cheaper rate? A. They have not done that so much lately. Well, in the later years the rates have been the same — practically the same. Q. How long has it been since you were able to get any competition in the matter of rates? A. Well, I could not get them locally; I would have to do that through other agents. I must say I have been able at different times to get some lower rates, but we had to keep those things more or less confidential.”

Mr. J. C. Hood, a local agent for many of the appellants, testified that the agents were supposed to write by the advisory rate of the rating bureau, and that he usually did so; that it was not considered fair .business methods among agents to cut rates.

Mr. Ellsworth, a witness for appellants, testified as follows :

“Q. Now, Mr. Ellsworth, when you go and make an arbitrary rate why do you put on these half cents? Why not make it even money if you are making an arbitrary rate, and not trying to find any standard? A. You are more apt to get by the little daily report reader in the office. Q. And that is the reason you do it? A. Yes, sir. Send in a sawmill of five per cent, and they think you have arbitrarily done something; you put it at five and one hundred eighty-three thousands, and he thinks you have found something, and it takes him six months to find out the difference.”

Mr. George Wheatley, local agent at Greenville, and witness for appellant, testified that he had never received a letter from any company stating the rates were binding or mandatory, but testified on cross-examination as follows :

“Q. Did the Hartford Fire Insurance Company request you, as a general thing, to collect the rates advised by the Mississippi Inspection & Advisory Rating Company? A. I had some correspondence from, the Hartford, where I wrote the rates at variance from the advisory rates, in which they said that the advisory rating which was before them called for a certain rate, and, inasmuch as they had adopted that rate as' their own, they asked that I advance it to that figure.”

Colonel Prescott, general agent of the Hartford Fire Insurance Company, and witness for .appellants, testified as follows:

“Q. Please state what is done in case where your local Mississippi agents vary from the rates of the Mississippi Inspection & Advisory Rating Company? A. As a general thing we have requested agents to collect the rates advised by the Mississippi Inspection & Advisory Rating Company, because these rates were based on actual inspections. As a general thing the rates advised by the Missis: sippi Inspection & Advisory Rating Company were too low; sometimes, when we felt that the rates were not high enough, we canceled our policies; in other cases we reduced the amount of our policies to a comparative nominal sum. Variations in rates, if immaterial, were accepted; otherwise corrected. No risks were accepted unless the rate was satisfactory to us, whether they were bureau rates or not.”

J. J. Scarbrough, a local agent at Poplarville, and a witness for the appellant, testified that there was no competition in his community between stock companies.

A number of local agents, witnesses for appellants, testified to variations from the rates advised by the rating-bureau, and that they had never received any instructions from any company directing- them to follow these rates. However, on cross-examination of several of these witnesses, in response to requests to produce such correspondence, a large number of letters from the companies were produced and filed which contained instructions to the agent to change rates to accord with those of the rating bureau, the tenor and effect of these letters being similar to the following:

January 27th, 1920.

“C. W. Leggett, Agent, Shubuta, Miss. — Dear Sir: Palatine No. 50243. S. H. Floyd. Acknowledging receipt of daily report as of above, we note that you have written this policy at a rate of two dollars and twenty cents. According to rate- slip No. 27, dated December 1, 1919, it appeared that the correct rate is three dollars and fifty cents, and we will .thank you to advance same accordingly, advising fis of the additional premium by indorsement. Yours very truly, Robt. Mable, Agency Superintendent.”

It further appears that prior to 1914 it was the general policy of insurance companies to write three-year policies on churches, schools, and dwellings for two annual premiums, and five-year policies for three annual premiums; that between the years 1914 and 1918 this was changed'throughout the United States by requiring two and one-half premiums for a three-year policy and four annual premiums for a five-year policy; that this change was adopted and put in force in all of the territory of the Southeastern Tariff Association some time between October 28, 1914, and January, 1915 ; that this change was adopted and promulgated for Mississippi by the rating-bureau on January 26, 1915; the officers of the rating-bureau testifying, however, that in making this change they acted upon their own independent judgment that such was necessary to yield an adequate return. It further appears that on June 1, 1918, an amendment to the advisory schedules was issued by the rating bureau, which placed a horizontal raise of ten per cent, upon all classes of property in Mississippi except dwellings, hospitals, schools, hotels, frame mercantiles, churches, and a few other minor classes; that this raise in rates was called a war emergency charge, the secretary of the rating bureau testifying- that he advised this charge on account of the increased cost of doing business and that in doing so he acted upon his own independent judgment; that about the same time the rating bureau promulgáted ,an increased rate on the classes of property which were excepted from the war emergency charge; that this war emergency charge and the companion raise of June 1, 1918, were put on in practically all of the states about the same time; that these changes were put on in the territory of the Southeastern Tariff Association on or about March 28, 1918; that this war emergency charge was withdrawn in many states, including the territory of the Southeastern Tariff Association, on September 1, 1919, and on the same day J. T. Robertson, secretary of the rating bureau, acting upon his own independent judgment, as he testified, withdrew this charge in Mississippi.

It further appears that whenever any one brought to the agent of any of these companies any complaint in regard to rates, or any request for information in regard to proper construction or reduction of fire hazard, they were referred by the agents to the rating bureau, and not to the companies; that the rating bureau maintained a corps of electrical and hydraulic engineers, whose services could be secured by any city, town, corporation, or individual free of cost, the compensation for the services rendered by the bureau to the assured coming from the insurance companies.

The witness Weille, president of the rating bureau, testified that in adopting the schedules of the Southeastern Tariff Association he did so because he believed these schedules were best adapted to conditions in this state, and that he acted upon his own judgment, uninfluenced by any company, agent, or rating organization; that in adopting the amendments promulgated by the Southeastern Tariff Association tlie rating bureau acted upon the independent judgment of its own officers; that it received no suggestions from and was not influenced by the insurance companies; that the schedules and rates furnished by the bureau were purely advisory, and that it had no contract or understanding with its subscribers, or any of them, that the rates should be used, and that the bureau had no power or authority to enforce its rates, and that it never attempted to do so.

J. T. Robertson, secretary of the rating bureau, and a witness for appellants, testified that, in adopting these schedules, and amendments thereto, and in disseminating the advisory rates, he acted upon his own independent judgment, uninfluenced by any insurance company or rating bureau, and that the rating bureau never had any agreement or understanding with any insurance company that it would adopt any specific rate, suggestion, or amendment which the bureau sent out.

The officers of the Southeastern Tariff Association of the Southeastern Underwriters’ Association testified that this association never attempted to exercise any jurisdiction or control, directly or indirectly, over fire insurance rates in Mississippi after the date of its retirement in 1900.

One or more officers of each defendant insurance company testified that the company had never exercised or attempted to exercise any power or authority in dictating or controlling the acts or services or any other function of the Mississippi Rating Company; that in the conduct of its business in Mississippi it had acted independently and according to its own judgment, without agreement or combination or understanding to influence it in conducting- its business, and that such was true in the matter of making or fixing rates or premiums; that it did not make or enter into or become a party to any agreement or combination with each other or either or all of the insurance companies to regulate and fix within the state of Mississippi, or any part thereof, the price or premium to be paid or collected for insuring property against loss or damage by fire; that it had not made or entered into or become a party to, on or since January 1, 1908, any agreement or combination with either or all of the insurance companies named as defendants in this suit, or any other company or companies, to regulate and fix the price or premium to be paid for insuring property within the state of Mississippi; that it had not made or entered into or become a member of, or party to, any contract, agreement, or combination, express or implied, with either or all of the other insurance companies named as parties defendant under and by which the said insurance company or any other insurance company did appoint and authorize the Mississippi Inspection & Advisory Rating Bureau, or any other company or person, to declare and fix what was the rate to be paid by the public for insuring property against loss or damage by fire in the state of Mississippi; that it had not made or entered into any agreement, combination, contract, or understanding with either or all of the insurance companies, or any company defendant in this suit to charge the public, as the price to be paid for insurance against loss by fire on property in the state of Mississippi, whatever price the said Mississippi Inspection & Advisory Rating Bureau should fix; that it had never given any power or authority, express or implied, to the Mississippi Inspection & Advisory Rating Bureau, or any other company, association, or person, to dictate or control the management of its business in the matter of fixing the price or premium to be paid for insuring property in the state of Mississippi; that it had not made or entered into any contract, agreement, combination, or understanding with either or all of the other defendant insurance companies under and by ivhich either or all of said insurance companies were to maintain the price or premium to be charged for insuring property in the state, sifter the price to so insure had been determined and fixed by the said rating bureau or by any other company or association; that it had not made, entered into, or become a member of, or a party to, any contract, agreement, combination, or understanding with either of the defendant insrurance companies that it or either of them would subscribe for or buy the rates or service of the Mississippi Advisory Bureau; that in the conduct of its business in the state of Mississippi since 1907 it had acted independently, and according to its own judgment, and had not in any manner or to any extent been a member of or a party to amy conspiracy, agreement, combination, or understanding with reference to tbe conduct of its business, and part icularly in the matter of the making or fixing of rates or premiums to be charged or in the matter of maintaining i ates or premiums:

Other facts and circumstances will be referred to and c ommented on in the course of this opinion.

This action was brought under the provisions of chapter 119 of the Laws of 1908 (Hemingway’s Code, sections 3281 and 3282)-, which provide, among other things, the following:

“A trust and combine is a combination, contract, under-t tanding, or agreement, expressed or implied, between two (/r more persons, corporations, or firms, or associations of persons, or between one or more of either with one or more of the others (a) in restraint of trade; . . . (g) to place the control, to any extent, of business or the products and earnings thereof, in the power of trustee, by whatever name called; (h) by which any other persons than themselves, their proper officers, agents' and employees shall, or shall have the poiver to, dictate or control the management of business; or (i) to unite or pool interests in the importation, manufacture, production, transportation, or price of a commodity; and is inimical to the public welfare, unlawful and a criminal conspiracy.

“Any corporation organized ■ under the laws of this or any other state, or country, and transacting or conducting any kind of business in this state, or any partnership or individual, or other association of persons whatever, who are now, or shall hereafter create, enter into, or become a member of, or party to, any pool, trust, combine, agreement, combination, confederation or understanding, whether the same is made in this state or elsewhere, with any other corporation, partnership, individual, or with any other person, or association of persons, to regulate or fix in this state the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or tornado, or to maintain said price Avhen so regulated or fixed, or who are now or shall hereafter enter into, become a member of or party to, any pool, agreement, contract, combination, association or confederation, whether made in this state or elsewhere, to fix or limit in this state the amount or quantity of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price of premiums to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other kind of policy issued by any corporation, partnership, individual, or association of persons aforesaid, shall be deemed and adjudged guilty of a conspiracy to defraud, and subject to the penalties as provided by chapter 145 of the Code of 1906.”

Upon the pleadings and proof offered the chancellor found that the appellant insurance companies had entered into or become a party to a combination, agreement, or understanding to regulate and fix the price or premium to be paid for insuring property in this state against loss or damage by fire and to maintain such price when so regulated and fixed, and the first assignments of error challenge the correctness of this finding of fact by the chancellor on the ground of the insufficiency of the evidence to support the decree. Appellants seek á reversal of the decree of the chancellor on the facts, and, in the consideration of the evidence and the decision of the question thus presented, certain well-established principles should be borne in mind and applied.

It is estáblished by an unbroken line of decisions in this state that a decree of a chancellor based on facts will not be reversed on appeal unless this court is convinced that the chancellor, in the rendition of the decree, made some material mistake in construing the law applicable to the case, or that the decree isv opposed to the great weight of the testimony, or that the decree is without evidence to support it, or, as most frequently expressed, that the decree is manifestly wrong. On appeal to this court, on all questions of fact, the inquiry is not whether the chancellor’s decision is right, or whether, on the facts, this court would have reached a different conclusion, but whether from all the facts, and the reasonable inferences to be drawn therefrom, the decree is manifestly wrong. Dillard v. Wright, 11 Smedes & M. 455; Kelly v. Miller, 39 Miss. 17; Davis v. Richardson, 45 Miss. 499, 7 Am. Rep. 732; Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Lee v. Wilkinson, 105 Miss. 358, 62 So. 275; Evans v. Sharbrough, 106 Miss. 687, 64 So. 466; Humbler v. Humbler, 109 Miss. 216, 68 So. 161; Bank of Lauderdale, et al. v. Cole et al., 111 Miss. 39, 71 So. 260; Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321.

While it is true that conspiracy denotes concurrence of intent and concurrence of action between individuals to effect a common purpose, yet this unity of purpose and design need not be evidenced by any formal written or verbal agreement, but may be embodied in some plan or scheme evidenced by the action of the parties, or by a mere tacit understanding between the conspirators to work to a common purpose, and it may be proven by either direct or circumstantial evidence.

As to the nature and character of evidence admissible to prove an unlawful agreement or conspiracy, the authorities are uniform, the correct rule being stated in 12 Corpus Juris, p. 633, as follows :

“The fact of a conspiracy may be proven by any competent evidence. The conspiracy may of course be shown by direct evidence, and, it is apprehended should be so proven if this character of evidence, is attainable. Direct evidence is, however, not indispensable. Circumstantial evidence is competent to prove conspiracy. Proof of the combination charged, it has been said, must almost always be extracted from the circumstances connected with the transaction which forms the subject of the accusation. The nature of the crime usually makes it susceptible of no other proof, and the rule which admits this class of evidence applies equally in civil and criminal cases. Circumstantial evidence if sufficiently strong may outweigh the positive statement of a party or witness.”

In 12 R. C. L., p. 1088, the rule is stated to be as follows :

“Conspiracies need not be established by direct evidence of the acts charged, but may, and generally must, be proven by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the person accused, done in pursuance of an apparently criminal or unlawful purpose in common between them. The existence of the agreement or joint assent of the minds need not be proved directly. It may b'e inferred by the jury from other facts proven. It is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object often by the same means, one performing one part and another another part of the same, so as to complete it, with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. If, therefore, one concurs in a conspiracy, no proof of agreement to concur is necessary in order to make him guilty. His participation in the conspiracy may be established without showing his name or giving his description.”

The rule is stated in similar language in numerous decisions of the United States supreme court as illustrated by the case of Eastern R. L. D. Association v. United States, 234 U. S. 600, 34 Sup. Ct. 931, 58 L. Ed. 1490, L. R. A. 1915A, 788, where. Mr. Justice Day used the following language:

“But it is said that in order to show a combination or conspiracy within the Sherman Act some agreement must be shown under which the concerted action is taken. It is elementary, however, that conspiracies are seldom capable of proof by direct testimony and may be inferred from the things actually done, and when in this case by concerted action the names of wholesalers who were reported as having made sales to consumers were periodically reported to the other members of the Associations, the conspiracy to accomplish that which was the natural consequence of such action may be readily inferred.”

The burden of proof in this case is on the complainant, and, since this suit is in the nature of a civil action for the recovery of penalties, we think the correct rule as to the degree of proof necessary to sustain a decree for complainant is stated in 12 C. J., p. 639, as follows:

“In order to establish a conspiracy, evidence must be produced from which a party may reasonably infer the joint assent of the minds of two or more parties to the prosecution of the unlawful enterprise. Disconnected circumstances, any one of which, is just as consistent with a lawful purpose as an unlawful purpose, are not sufficient to establish a conspiracy. However, the doctrine of reasonable doubt has no place in a civil suit for damages where it is sufficient, if the evidence is full, clear and satisfactory, and the conspiracy established by a preponderance of the evidence. This degree of proof, however, is unnecessary.”

In this case the state depends upon circumstantial evidence to establish an unlawful agreement or understanding, and the rule to be applied in the consideration of this evidence is correctly stated in the ease of Banks v. Banks, 118 Miss. 783, 79 So. 841, as follows :

“Where an offense of this kind is sought to be proven by circumstantial evidence, the circumstances must be proven with reasonable certainty, and the circumstances so proven must be such that the conclusion' sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven, the proof will be insufficient because, to invest mere circumstances with the force of trust, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence.”

Since the relations and connections of the appellant companies with the Southeastern Tariff Association and the Mississippi Inspection & Advisory Rating Bureau have such an important and, as.we think, controlling bearing upon the solution of the question here involved, it is important to consider at the outset the conditions which brought about the establishment of these organizations, as well as their objects, purposes, and accomplishments, and the methods by wffiich each of these organizations accomplished the purposes for wffiich they wrere organized.

The Southeastern Tariff Association was organized in the year 1882, and is an association of fire insurance companies organized for the purpose of establishing, enforcing, and maintaining uniform rates for fire insurance premiums, the members of which bound themselves to observe and enforce the rates established by this association. From a history of this association, which is in evidence, we learn that prior to the time of the organization of this association unrestrained competition in rates, as it is therein denominated, prevailed, but through the efficient and effective work of this association competition in rates wms destroyed, and uniform rates established and enforced. In the year 1890, the jurisdiction of this association was extended to this state, and thereafter, for a period of ten years, the agreed rates of this association w7ere enforced in this state. In the year 1900 the anti-trust laws of the state were amended, and shortly thereafter the Southeastern Tariff Association withdrew from this state under an agreement with the attorney-general that certain litigation then pending against it would be dismissed, and after its withdrawal competition in rates again prevailed until the Mississippi Inspection & Advisory Eating Burean, which was organized in 1903, began to function.

The objects sought to be accomplished through this rating bureau are not to be left in doubt as it is admitted in the answer of the defendant that — “The primary purpose of this bureau was for the protection of the insured, and for the purpose as far as possible of providing for just, reasonable and uniform rates under similar conditions.”

The answer avers that “long experience had shown that uniformity of rates is essential to the conducting and carrying on of the business of fire insurance, “and likewise admits that through this rating bureau practical and general uniformity of rates was accomplished, and the proof shows that this uniformity of rates was maintained for a period of thirteen years prior to the institution of this suit.

Before discussing the controverted point as to the methods by Avhich this uniformity of rates was accomplished, it becomes important to inquire into the origin and source of the rates which'were adopted and- maintained as the uniform rates in this state.

It clearly appears from the testimony that the Mississippi Eating Bureau only contracted with the subscribing insurance companies to furnish specific rates, which are made by the mere inspection and application of basic schedules to particular property. This rating bureau did not, and could not, make basic schedules, and prior to 1908, in making such specific rates as it issued, it used and applied schedules then in the hands of the local agents and in general use in the state. In the early part of the year 1908, the Southeastern Tariff Association adopted and issued a book of revised basic schedules, which was printed by the Lester Printing Company, of Atlanta, Ga., and shortly thereafter the Mississippi Eating Bureau pur-" chased from this printing company one thousand copies of this book of Southeastern Tariff Association’s schedules. After attaching thereto all amendments which had been promulgated by the Southeastern Tariff Association since the publication of the book, it was then adopted by the rating bureau for use in this state, and issued to be used here by advice, and a copy of this book was sent to each local agent in the state and to each insurance company subscribing to this bureau. These southeastern basic rates, which were adopted in their entirety for use in this state, were made and agreed upon in the councils of certain of the defendant insurance companies for use in the territory served by this association. They were adopted bodily by the rating bureau, and then issued to the local agents as the only basis of rates offered to them by the bureau, and although they came’ from the companies charged with the impurity of agreement, after being filtered through the rating bureau, and thus purified, they found their way back to the source from whence they came, and were then issued to the agents as the only rates offered them by the companies.

The next inquiry that arises is whether these rates which were promulgated by the rating bureau were enforced, The chancellor found as a fact that they were, and we think this finding is abundantly supported by the facts and circumstances in evidence. It is true that there is evidence from a number of agents of variations from the bureau rates in’a small percentage of the business written, but there is also abundant evidence of action on the part of the companies seeking to require adherence to the bureau rates, and it would probably be impossible to devise any method of enforcement that would be perfect in its operations or in the accomplishment of the desired results. Likewise, there is abundant evidence in the record that the companies reserved and frequently exercised the right to refuse to write policies at a rate as low as the bureau rates, but there is no evidence that any one of these companies, during all the years, ever, in the exercise of its independent judgment, exercised a right to require a rate below the bureau rates, and, in so far as any such action on the part of the companies themselves is concerned, the burean rates were adopted as an irreducible mimimum. But it is said that, on account of the limited amount of insurance that can be written on a particular risk by one company, it frequently became necessary for two or more companies to. write insurance on the samé property, and that in such cases the assured demanded of all the companies the lowest rate offered by any of them, and that this necessitated, or at least contributed to, uniformity of rates. Conceding that the assured would demand of all companies the lowest rate offered on any risk, it does not follow that the lowest rate offered must be the bureau rate, if in fixing the rate the various companies and their agents acted upon their own independent judgment There is also the evidence of hundreds of local agents that these bureau rates were uniformly used by them, and it is expressly admitted by the defendants that practical and general uniformity of rates was attained and maintained, and this uniformity of rates extending over a long period of time is very strong, if not conclusive, evidence of enforcement of rates; for it is undoubtedly true that, if, by the exercise of the independent judgment of each company, many different companies should happen to adopt the same rates, yet, when these rates are used and applied by hundreds of different agents to multiply thousands of different risks, there will be no general uniformity in rates without enforcement.

It is, however, argued with great earnestness and force that uniformity of rates results from the nature and necessities of the business of insurance, and that such uniformity is no evidence to prove or tending to prove an agreement on the part of the companies to fix or maintain rates, and that no inference that such an agreement exists may reasonably be drawn from tfie fact that uniformity exists. It appears, however, that before the Southeastern Tariff Association assumed jurisdiction in Mississippi, and during the period intervening between its withdrawal and the adoption of the Southeastern Association’s rates by the rating bureau, uniformity in rates did not exist, and we think it is clear from the evidence in this record that the uniformity in rates which existed in this state far many years did not result from the nature and necessities of the business of insurance.

We concede that the mere fact of uniformity of rates, standing alone, might not warrant a conclusion that an agreement to fix and maintain rates existed, but, when it is considered in connection with the methods by which this uniformity was brought about, and the fact that the rates adopted for use here were rates which had been agreed upon by the companies for use elsewhere; that more than sixty different companies adopted the same rates; that these rates were almost invariably used by all the local agents for thirteen years; that during all this period of time these companies furnished their agents with no other rates, but used and enforced the rates that were promulgated by the rating bureau; that the rating bureau-controlled in the matter of fixing and declaring the rates to be charged in this state; that the rating bureau was incapable of making basic rates, but adopted bodily the schedules which had been prepared by the companies acting in concert, and the only rates purchased by the companies from the rating bureau were rates based upon schedules prepared by the companies acting in concert; that an admitted purpose of the rating bureau was to provide uniform rates under similar conditions; that the daily reports of policies written were checked by schedules which had been advised by the rating bureau, but which were identical with those which had been made and agreed upon by the companies themselves; that a remarkable concurrence of action between the companies, resulting in the destruction of competition in rates, continued for many years — together with many other facts and circumstances in evidence, we think it may reasonably be inferred that the establishment and maintenance of these fixed rates was by understanding or agreement, and not by accident or coincidence; and, if this understanding or agreement may be inferred, then it may also be inferred as a fact that the understanding or agreement to use and maintain the rates existed between the defendants from the time when, through the Mississippi bureau, they subscribed for and applied in Mississippi their own agreed rates which had been made for use elsewhere.

' In the case of Carroll v. Greenwich Insurance Co., 199 U. S. 401, 26 Sup. Ct. 66, 50 L. Ed. 250, the supreme court of the United States says:

“The bill seems to assume that the statute forbids insurance companies to obtain and use each other’s experience, or to employ the same person to work up the results. It does not. It simply forbids an agreement between the companies relating to the rates which may be based upon those results. No doubt an agreement between the companies readily would be inferred, if they were found all to charge the same rates; but an agreement between the companies is the only thing aimed at, and if they avoid that they escape the law.”

It is said in argument that one or more of the officers of each of the defendant companies testified positively that no agreement existed between the companies to regulate and fix or to maintain rates in Mississippi, and that these witnesses are not impeached or contradicted. It is true that they are not impeached, but they are contradicted by the facts and circumstances in evidence, and it was peculiarly the province of the chancellor, as the trier of the facts, to determine what weight should be given to the facts and circumstances, as well as the positive testimony of the witnesses.

The argument in regard to the evils of competition in insurance, and the benefits' to flow to the public from the destruction of competition and the maintenance of uniform rates, and the establishment of rating bureaus for the purpose of securing uniformity of rates, is answered by the fact that, under the law as it now exists, making it unlawful to enter into any agreement or understanding to regulate or fix, or to maintain when so fixed or regulated, the price or premium to be paid for insuring property, the manifest purpose is to preserve free competition in the matter of fixing insurance rates.

The testimony shows that the rating bureau did not and could not make basic rates; that the rating bureau received from the defendant companies its compensation for the extensive services which, through its engineers, it rendered to the insuring public without cost to the assured; that its services were not salable to the insurance companies until it began to furnish specific rates based upon schedules prepared by the companies in concert; that, it bodily adopted for use in Mississippi the basic schedules of the Southeastern Tariff Association, which were schedules made and agreed upon by the defendant insurance companies for use elsewhere; that after the adoption of these schedules the rating bureau controlled in the matter of fixing and declaring rates to be charged for insurance in this state, as shown by the statements and admissions of the company’s agents, as well as other testimony ; that the rating bureau adopted in whole or in part many of the Southeastern Association’s amendments to schedules; that it put on the so-called war emergency charge shortly after it was adopted by the Southeastern Association; that this bureau adopted the increase in rates for term policies, as well as other horizontal increases in a number of classifications, shortly after they were adopted by the Southeastern Association; that it removed the war emergency charge on the same day that it was removed by the association; and, although the officers of this bureau testified that all of these acts of the bureau were the result of the exercise of the independent judgment of the officers thereof, uninfluenced by any insurance company, it was for the chancellor to decide, under all and facts and circumstances in evidence, whether these acts of the bureau were the result of the exercise of independent judgment or the result of understanding and agreement.

The testimony shows that most of the defendant companies, about sixty in number, subscribed for and used in Mississippi the rates issued by the rating bureau, which were the identical rates that had been previously made and agreed upon by them for use elsewhere; that these were the only ratés furnished by the companies to their agents; that they were used by the more than six hundred agents in the states for thirteen years, and during all that time the hundreds of schedules were applied to particular property without material variations in rates; that the daily reports of policies written were compared and checked with the rating bureau’s schedules in the offices of the companies; that the rating bureau’s schedules, with which these comparisons were made, were identical with those of the Southeastern Tariff Association, which had been made and agreed upon by these companies; that these rates were enforced by the companies, and practical uniformity of rating was maintained throughout the period of thirteen years; that during this entire period there was no real competition in rates between the stock fire insurance companies, but the only competition that existed was competition in service rendered by different agents or agencies; that all the defendant companies ceased to write policies in this state, and withdrew from the state on or near the same date; and, although some officer of each of these companies testified that there was no agreement in reference to rates or other matter, it was for the chancellor to decide whether, under all the facts and circumstances in evidence, this remarkable concurrence of action on the part of these companies and their agents and the results accomplished thereby were all the results of the exercise of independent judgment on the part of the officers of these companies, or the result of understanding and agreement, and we are unable to say that the chancellor was manifestly wrong in reaching the conclusion that this concurrence of action did not happen by accident or coincidence, but was the result of understanding or agreement.

There are many facts and circumstances in this record which, when taken separately, may be of little evidential value, but, when grouped together, their relevancy is apparent, and they become strong and convincing, and upon the whole evidence we think that, as to those defendants who were members of both the Southeastern Tariff Association and the Mississippi Inspection & Advisory Rating Bureau, reasonable inferences inconsistent with any reasonable theory of innocence may be drawn, or, in other words, that a reasonable inference may be drawn that there existed an understanding and agreement to regulate and fix, and to maintain, the price or premium to be paid for insuring property against loss or damage by fire. McCann v. State, 13 Smedes & M. 471. This being-true, it was the peculiar province of the chancellor to weigh the evidence and draw inferences therefrom, and since, from all the facts and circumstances in evidence, he has found that an agreement existed between all the appellant companies to regulate and fix, and to maintain, these rates, we are not able to say that his dicision is manifestly wrong as to those defendants, which were members of both the Southeastern Association and the rating bureau. However, as to those companies which were not members of the Southeastern Tariff Association, and which did not participate in the agreements of this association, we think the evidence is insufficient to support the decree, and that the decree against these particular defendants should be reversed.

It is next contended that the imposition of cumulative penalties extending over a long period of years is not authorized by the statutes under which this suit is brought, and that the penalties imposed in the decree are so excessive as to deprive the appellants of their property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and section 14 of the Constitution of the state of Mississippi, and also that the penalties imposed on the individual companies are so excessive as to violate section 28 of the Constitution of the state of Mississippi, which provides ■ that excessive fines shall not be imposed.

Prior to the enactment of chapter 222 of the Laws of 1910 (Hemingway’s Code, section 3286) the penalties for violations of the anti-trust laws prescribed by our statute (section 5004, Code of 1906) were fixed at the minimum of two hundred dollars and the maximum of five thousand dollars for each offense, and each day that the violation continued was made a separate offense. The act of 1910 reduced the minimum penalty to twenty dollars for each offense, and in the present case the court imposed the minimum of two hundred dollars for each separate offense occurring prior to the passage of the act of 1910 and a penalty of twenty-five dollars per day thereafter'.

We do not think the contention that cumulative penalties cannot be imposed under our statutes can be maintained. By the express provisions of the anti-trust statutes each day that the unlawful combine is maintained constitutes a separate offense, and it was within the power of the legislature to so provide, and to prescribe punishment for each separate offense, and it is perfectly clear from the language of the statute that it was the purpose of the legislature to provide a penalty for each and every offense. In the case of Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, this court said:.

“By the express terms of section 5004 of the Code, each person, partnership, or corporation is liable for the penalty provided for its violation. There is no room for construction. Where any number have combined together, in violation of law, each is liable for the full amount of the penalty which the court may see fit to impose, from the minimum to the maximum fixed by the statute; each stands as if he were the only guilty one; and each day the business is carried on is a separate breach of the statute.”

It is peculiarly within the province of the legislature to prescribe the fines or other punishment which may be imposed for violations of law. Punishment should be fixed and measured by the grade of the offense and the evil to be corrected, and in the exercise of its judgment in this regard the legislature must be allowed a wide latitude, and its judgment and discretion' in this regard will not be restrained or controlled by the courts unless the penalty fixed is so disproportionate to the offense as to shock the conscience.

■ In this case it is not contended that even the maximum penalty prescribed for one offense is excessive, but it is contended that, on account of the imposition of cumulative penalties extending over a period of years, the penalties imposed against each defendant are so excessive as to operate as a deprivation of property without due process of law. It is true that the aggregate of the penalties imposed against most of these defendants is large, but this is due to the fact that they havo been convicted of repeated and long-continued violations of law, and the fact that a person has so persistently and repeatedly violated the law that he incurs large penalties will not render the statute fixing the penalty unconstitutional.

In the case of Waters-Pierce Oil Co. v. State of Texas, 48 Tex. Civ. App. 162, 106 S. W. 918, the defendant was convicted of violating the anti-trust laws of the state of Texas, and the penalties imposed for each day during a period of seven years aggregated the sum of one million, six hundred and twenty-three thousand, five hundred dollars. This conviction was affirmed by the supreme court of Texas in 107 Tex. 1, 106 S. W. 326, and also by the supreme court Qf the United States in 212 U. S. 86, 29 Sup. Ct. 220, 53 L. Ed. 417, and in the decision of the case the court of civil appeals of Texas said:

“It is claimed the trial court should have granted appellant’s motion for a new trial based upon the ground that the judgment imposes excessive fines and operates as a deprivation of property without due process of law. It is also contended that the act of 1899 should he declared void, because it authorizes excessive . . . forfeitures. That question has already been decided against appellant’s contention in State v. Laredo Ice Co., 96 Texas, 467, 73 S. W. 951. The verdict, while large, is . . . mainly attributable to appellant’s repeated and long-continued violations of the law; . . . hence we have reached the conclusion that the verdict is not so large as to render it manifest that the jury were actuated by prejudice or other improper motives.”

If it should be conceded, however, that a case might arise where the penalties imposed are so grossly excessive as to amount to a deprivation of property without due process of law, we do not think that it can be successfully argued that this is such a case. The penalty imposed against each defendant for each separate offense was practically the minimum fixed by the statute. The largest aggregate amount imposed against any one defendant was one hundred and ninety-five thousand, eight hundred and seventy five dollars, while the smallest was one thousand, three hundred and fifty dollars. In only one instance does the total of the penalties imposed amount to as much as one-half of the surplus of the company, and in most instances it amounts to only a very small percentage of the particular defendant’s surplus. The penalties against most of the defendants are large, but they are within the terms of the statute, and were imposed for repeated and long-continued violations of law, and in the imposition of these penalties there was no want of due process of law.

It is next contended by appellants that all recovery in this case should be barred on account of laches in filing the suit. The statutes under which the suit is prosecuted makes each day that the unlawful combination or agreement continues a new, separate, and distinct offense, and the doctrine of laches cannot be applied to bar recent offenses, and we are clearly of the opinion that it cannot be applied to bar recovery for offenses which have occurred within six years, but we are of the opinion that this doctrine may be and should be applied in this case as to all penalties which accrued more than six years before the institution of the suit.

The doctrine of laches is entirely distinct from the statute of limitations, and entirely different from that of estoppel. In the case before us the rates promulgated by the rating bureau were filed with the Insurance Commissioner, and all amendments and changes made in them were filed with him until he directed this to be no longer done. In addition to this the rates were filed with each insurance agent or agency in the state, and were applied to practically all risks written in the state. The attorney-general in 1900 had a suit filed against the appellants and the Southeastern Tariff Association, and this was settled upon agreement that the Southeastern Tariff Association would withdraw from the state, and that its rates would not be enforced in the state. After this agreement the books containing the basic schedules were left with the agents writing business in the state as a guide in fixing rates. In 1908 the Mississippi Rating Bureau was incorporated for the purpose of fixing and promulgating rates and selling them to all persons or corporations desiring to buy them. These rates could not be sold until an opinion was obtained from the attorney-general holding that the corporate powers were lawful so long as 'there was no agreement, direct or indirect, that they would be binding, and not merely optional,. After obtaining this ruling the rating bureau adopting bodily the book of schedules and rates of the Southeastern Tariff Association, eliminating therefrom the printed provision that the rates were binding upon each company and agent. The rating, bureau then sold these rates to the companies who composed the Southeastern Tariff Association, and they were thereafter applied in this state with practical uniformity. This was a matter that reasonable investigation would have disclosed in its true light. It is true that the Insurance Commissioner had no power to prescribe rates, but he was under the general duty to see that the law was not violated by the insurance companies, and it seems that investigation would have disclosed the facts which we now hold constitute a violation of the law. It would seem that under the circumstances in evidence, the state authorities would have made some investigation to see that the agreement made was carried out in good faith. The principal officer having to do with the rates adopted by the Mississippi Rating Bureau in 1908 is now dead, and his testimony is not available to the defendants. Likewise one of the chief officers of the Southeastern Tariff Association at the time the 1908 basic rates of said association were adopted is dead, and a number of important witnesses are also dead. Besides, the memory of others is necessarily impaired by the length of time passing between the adoption of the Southeastérn Tariff Association’s book of rates, making it more difficult to obtain the proper evidence and making it less certain that equity can do full justice to all the parties because of these facts.

In 21 C. J. 212, the following rule is announced in reference to laches:

“It is an inherent doctrine of equity jurisprudence that nothing less than conscience, good faith, and reasonable diligence can call courts of equity into activity, and that they will not grant aid,to a litigant who has negligently slept on his rights and suffered his demand to become stale where injustice would be done by granting the relief asked. It is therefore a general rule that laches or staleness of demand constitutes a defense to the enforcement of the right or demand so neglected. This doctrine has existed since the beginning of equity jurisdiction, independently of statutes of limitations, although it is more or less affected in its 'operation by those statutes. The doctrine is based in part on the injustice that might result from the enforcement of long-neglected rights, and the difficulty, if not impossibility, of ascertaining tbe truth of the matters in controversy and doing justice between the parties, and in part on grounds of public policy, its aim being the discouragement, for. the peace and repose of society, of stale and antiquated demands. The rule that the enforcement of a right may be barred by laches is an application of the maxims, ‘Vigilantibus, non dormientibus, subveniunt leges/ ‘He who seeks equity must do equity/ and ‘He who comes into equity must come with clean hands.’ . . . The defense of laches is peculiar to- courts of equity and is not pleadable in actions at law.”

In Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307, this court quoted with approval the language of Stiness, J., in Chase v. Chase, 20 R. I. 202, 37 Atl. 804, as follows:

“Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become .so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of. equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.”

In 21 C. J. the following rule is announced:

“A court of equity will refuse relief after inexcusable delay because of the difficulty, if not the impossibility, of arriving at a safe and certain conclusion as to the truth of the matters in controversy and doing justice between the parties, where the evidence has been lost or become obscured through the loss of documents, or through death or disappearance of one or more of the participants in the transaction in suit or of the witnesses thereto, or through impairment of the memory of participants or witnesses still living. While the rule requires for its support no element of estoppel, hut is founded on public policy, the fact that the delay has tended to defeat defendant’s power to prove his right is an additional reason for its application ; and relief is more readily denied in case of the death of a party to the transaction than in other cases, since his death usually presents difficulties in procuring evidence and conducting the defense other than those arising from the mere loss of his testimony. To bring the rule into operation, it is not necessary that the court should be convinced that the original claim was unjust or has been satisfied; it is sufficient if the court believes that under the circumstances it is too late to ascertain the merits of the controversy. ... In any event, loss or obscuration of evidence is a material circumstance to be considered in determining whether the asserted claim shall be enforced.”

Laches in a case like this, which involves a continuing series of acts committed daily, may be justly applied to a portion of the daily penalties, and not applied to those of more recent date, since the evidence of acts done' long ago might be lost or. impaired, while the recent acts áre, or may be, easily proven. The question then arises-, and is an important one in applying the doctrine of laches, what under the circumstances is a reasonable time, and at what period of the time should the doctrine be applied? In our opinion the statutes of this state have fixed a public policy in such matters which may be resorted to in connection with all the circumstances. Section 4742 of the Code of 1906 (section 7060, Hemingway’s Code) limits the powers of the revenue agent in collecting back taxes, to six years. The general statutes of limitation fixed a limit for individuals, where no other limit is prescribed, at six years. Statutes of limitation as such do not run against the state and therefore mere delay alone will not affect the state’s right to sue; but we are not dealing with statutes of limitation, nor with mere lapse of time, but we are considering what, in the light of the record before us, is a reasonable time to constitute laches, and we are of the opinion that six years, applied to the facts in the record before us, is reasonable. Each case, however, must stand upon its own peculiar facts in applying the doctrine of laches.

The weight of authority is to the effect that, generally speaking, laches will not be attributed to th'e state, and especially when it is acting in its sovereign capacity or exercising rights on behalf of the general public; and most of the courts seem to have generally acted upon this theory in administering its laws in suits by the state in its governmental capacity. There are, however, in our opinion, circumstances when equity will apply the doctrine of laches to the state itself. In the case before us the suit does not involve contract or property rights, but is founded in tort, and the penalties are designed to enforce statutes that are punitive in nature, though enforced by civil suit. These penalties accumulate daily, and run through a series of years, making a vast amount of money in the aggregate. Under the circumstances existing in this case, can violations like this run on for a long series of years, and then, when the state has permitted this, or has taken no action after knowledge, may it, after many years, fall on the offender and collect princely fortunes in the way of penalties? We are aware of the fact that in applying the doctrine of laches great caution should be used in applying it to the government, especially to the government when acting in its public capacity; We think, however, that such application should be made in the case before us, and that such application will further justice. There are many authorities which support the view that laches may be applied to the state in a suit brought by it in its governmental capacity. See State of Minnesota ex rel. Young v. Village of Harris, 102 Minn. 340, 113 N. W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Cas. 260, and State ex rel. v. Lincoln St. R. Co., 80 Neb. 333, 114 N. W. 422, 14 L. R. A. (N. S.) 336, and notes to each case.

' In the case of State of Minnesota ex rel. Young, Attorney General, v. Village of Harris, 102 Minn. 340, 113 N. W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Cas. 260, it was held that — “Sound principles of public policy require that the state should be precluded from attacking the franchise of a village which had been permitted to exercise the functions of a village de facto for the period of twenty years and had been recognized as an existing village by legislative enactment.”

In the course of the opinion, in discussing the decisions of other courts on the question, the Minnesota court said:

“In State v. Town of Westport, 116 Mo. 582, 22 S. W. 888, it was held that quo icarranto proceedings will not lie on the part of the state to deprive a city and its officers of their franchise because of irregularities in its organization after the lapse of twelve years, and after repeated recognition of its corporate existence by the courts and legislatures during that time. While the facts upon which some of these decisions rest are stronger, in that the acts of recognition were more extensive, yet the principle is the same, and in no case was the time of acquiescense equal to the period in this case. The question involved is not whether the corporation was void from the beginning by reason of a defective petition, or arose from a defect in some subsequent step of the proceedings. ' We perceive no difference between the case now under consideration and others cited by the relator, where the defect grew out of some intermediate step in the process of incorporating. Although under the decisions of this court the-village of Harris was not legally incorporated, for the reason that it attached territory not authorized under the act of 1885, yet the legislature might have authorized villages to be incorporated with such territory, and whatever the legislature originally had the power to do it also, by its subsequent conduct, had power to ratify. We conclude that, under the circumstances, the state should not be heard to question the existence of. the village. Our decision is based upon sound principles of public policy. No public interest would be subserved in permitting the state, after-a period of twenty years, to have the village franchise annulled.”

This case is one in which the state was proceeding in its governmental capacity, acting for the public generally in a matter where the state is supreme. Many other cases are cited in the L. R. A. notes to the report of this case, and an examination of them and of the principles upon which they rest will demonstrate the soundness of the views for which we contend in the case before us.

In the Nebraska case of State ex rel. v. Lincoln Street Railway Co., 80 Neb. 333, 114 N. W. 422, 14 L. R. A. (N. S.) 336, it is announced in the fifth syllabus:

“The courts, in a proper case, will apply the doctrine of laches to a case in which the state is a party plaintiff. The state, like individuals, may be estopped by its acts or laches, and should not be allowed to oust a corporation of its rights and franchises, where for a long series of years-it has stood silent and seen the corporation expend large sums in the acquisition of property and improvements made thereon under a claimed right so to do under its charter.”

This case is also a case where the state was proceeding in its sovereign capacity to enforce laws made for the public protection, and but for its laches could have successfully maintained the suit. The L. R. A. report of this case shows additional cases holding similarly, and will be found interesting.

In State v. Livingston, et al., 164 Iowa, 31, 145 N. W. 91, the Iowa supreme court held that, while limitations cannot be urged against the state, yet where the state invokes the powers of equity to establish its rights as by an action to- quiet title, it may be denied relief on the ground of laches or estoppel. At page 94 of the Northwestern Reporter (164 Iowa, 41), in discussing this' question, the court said:

“Whatever may at one time have been the superior rights of others, if there were such, under this state of facts it is quite clear that, if this action were between individuals, the plaintiff would fail as against the plea of adverse possession, as there can be no doubt that for a period longer than ten years the defendants and their grantors have been in possession of this real estate, claiming it as rights resulting from accretion, as well as under their conveyances . . . and have used it for the purposes of husbandry, and made improvements by way of fences. While it is. the general rule that the statute of limitations cannot be urged against the sovereign, the right to rely upon an estoppel by acquiescence and the place of laches is recognized by many courts, including our own, and is based upon principles of equity. State v. Des Moines, 96 Iowa, 534, 65 N. W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381; State of Iowa v. Carr, 191 Fed. 257, 112, C. C. A. 477; State of Indiana v. Milk (C. C.), 11 Fed. 389; United States v. McElroy (C. C.), 25 Fed. 804; State of Michigan v. Jackson, 69 Fed. 116, 16 C. C. A. 345.”

In State of Wisconsin ex rel. Attorney General v. Northern Pac. Ry. Co., 157 Wis. 73, 147 N. W. 219, it was held that, as regards remedies, rights may, by countervailing equities, under some circumstances, be superseded as to the state. The action in that case was to compel by mandamus the Northern Pacific Railway Company to file with the Secretary of State certain papers showing its increase of stock, and to secure a judicial forfeiture of the company’s charter for breach of statutory duty. The facts were stated in the opinion, and one of the defenses relied on was laches, and at page 224 of the Northwestern Reporter (157 Wis. 83) the court said on'that point:

“The foregoing states, briefly, the whole case as first presented. It does not follow as matter of course, that, because there is ground for forfeiture of a corporate franchise, this court should permit its jurisdiction to be used to that end. Rights as regards remedies may by interfering equities, under some circumstances, be lost by the state as well as by individuals. It has no vested or inherent right in such matters which it may use unjustly and oppressively, being dependable, as it is, for vitality of such rights upon the original jurisdiction of this court which is said to be ‘unlimited in extent’ ‘undefined in character’ (Atty. Gen. v. Railroad Cos., 35 Wis. 425; State etc., v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33), clothed with sovereign authority of the people, so, necessarily, as limitless as the exigencies of situations requiring judicial interference. Such was the wise purpose of the framers of the Constitution (State, etc., v. Helms, 136 Wis. 432, 118 N. W. 158) to create a power equal to all emergencies, to be used as sparingly as should comport with its dignity and the importance of the matter to be dealt with, and always to the end that justice might be done — justice in the broadest sense, judicially cognizable which may, and often does, rise above and render dormant remedies for vindication o'f strict legal rights. . . . Time may be so characterized by circumstances as to estop the state from enforcing legal rights and require the court, in the exercise of sound judicial discretion, to refuse to open its door to an effort to that end.” ¡

The rule for which we contend in this case is well stated in (C. C.) 17 Fed. 36, in the headnotes to the case of the United States v. Beebe et al., as follows:

“When the lapse of time has been so great as to afford a reasonable presumption that the witnesses are dead, and the proofs lost or destroyed, a court of equity will refuse to undertake the task of ascertaining the facts and affording a remedy; and this, not because of any statutory limitation, or because of- laches merely, but upon grounds of public policy for the peace of society.”

In the case of Pittsburg Rys. Co. et al. v. Carrick, 259 Pa. 333, 103 Atl. 106, the court held that “laches may be imputed to the commonwealth as well as to an individual.” See, also, In re Bailey’s Estate, 241 Pa. 230, 88 Atl. 428; Commonwealth v. Turnpike Co., 153 Pa. 47, 25 Atl. 1105.

In the case of the State of Missouri ex rel. v. Westport, 116 Mo. 582, 22 S. W. 888, which was a proceeding by the state in its governmental capacity against a municipality, the court applied the doctrine of laches to the state, and (in discussing the question said at page 595 of the official report (22 S. W. 890):

“We do not think that this proceeding comes within the statute of limitations, nor are we disposed to place the result of our deliberations strictly on the ground of estoppel, but rather because of laches on the part of the state.”

We are aware of what is said on this subject in Josselyn v. Stone & Matthews, 28 Miss. 753, but we think that case ought to be limited to its facts, as it is clearly the rule that this must be done in applying the doctrine of laches. The Josselyn case is one more of limitations than of laches. No facts there áppear which would make it inequitable or unjust for the state’s claim to prevail. It is true that greater caution should be used in applying the doctrine of laches to the state on account of the fact that in the administration of the law there are manifold duties occupying the officer’s time and attention, and often the state has not equipped any officer with necessary funds and assistants to properly take care of its business with the same care and caution that a private citizen or private corporation would exercise; but, after all, the doctrine of laches is designed to prevent injustice; and, where there is delay for a long period on one side, and injustice and hardship on the other, unless laches is applied equity will and should apply it, and the state should not be allowed to inflict injustice in enforcing rights that should have been asserted long ago. It is better for the state to suffer, where it has been neglectful, than to permit citizens to 'suffer injustice in such case, and, upon the facts in the particular case before us we think the doctrine of laches should be applied to bar recovery of all penalties incurred by reason of offenses committed more than six years before the institution of the suit.

We do not think any reversible error is presented by any of the assignments based upon the admission or exclusion of evidence.

On the cross-appeal, the complainant assigns as error the action of the court below in discharging certain defendants, but we are of the opinion that this assignment is without merit.

For the views of each of the judges on the several questions presented, and for the final disposition of the cause, reference is made to the per curiam opinion this day filed herein.