FOSTER, District Judge
(after stating the facts as above). The defendant challenges the jurisdiction of the court in this: that the bill charges the wrongful acts of the defendant to have been done as superintendent of insurance, and purely in his official capacity, and seeks by mandatory injunction of this court to compel said officer to reissue the certificate of authority, and is in reality a proceeding against the state of Kansas. It will be observed that the restraining order heretofore issued is the ordinary injunction. It will be further observed that the bill charges that the defendant’s acts were wrongful and malicious, and without authority of law, and illegal and void. It is earnestly contended by counsel for the defendant that this court has no jurisdiction, and in. support of this contention counsel relies largely upon In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164.
In the case of Reagan v. Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, which was long subsequent to the Ayers Case, the supreme court had occasion to review at great length this question, and there laid down the doctrine that the court had jurisdiction, and that it was not in violation of the eleventh amendment of the federal constitution to proceed by injunction against an officer of the state seeking to enforce the provisions of an unconstitutional act of the legislature, and the order in that case enjoined the defendants in their official capacity as state officers. The court in said case (page 390, 154 U. S., and page 1051, 14 Sup. Ct.) uses the following language:
“Neither will the constitutionality of the statute, if that be conceded, avail to oust the federal court of jurisdiction. A valid law may be wrongfully administered by officers of the state, and so as to make such administration an illegal burden and exaction upon the individual. * * * They may go beyond the powers thereby conferred, and, when they do so, the fact that they are assuming- to act under a valid law will not oust the courts of jurisdiction to restrain their excessive and illegal acts.”
In Cunningham v. Railroad Co., 109 U. S. 446, 452, 3 Sup. Ct. 292, 297, it was said:
[893]*893•‘In these casos lie is not sued as, or because lie is, the officer of Hie government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him.”
In Re Ayers, 123 U. S. 500, 8 Sup. Ct. 180, the court quotes with approval the doctrine established in Allen v. Railroad Co., 114 U. S. 311, 5 Sup. Ct. 925, 962, and Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, and says:
“The vital principle in all such cases is that the defendants, though professing to act as officers of the state, arc threatening a violation of the personal or property rights of the complainant, for which they are personally and individually responsible. * * " ‘A defendant sued as a wrongdoer, who seeks to substitute the state in his place, or to justify by the authority of the slate, or to defend on the ground that the state has adopted his act and exonerated him, eaunot rest on the bare assertion of his defense. He is bound to establish it. * * * It is necessary, therefore, for such a defendant, in order to complete his defense,' to produce a láw of the state which constitutes his commission as its agent and warrant for his act. This the defendant in the present case undertook to do.’ ”
And in the Poindexter Case, cited, the court uses this language:
“The case, then, of the plaintiff below, is reduced to this: He had paid the tax demanded of him by a lawful tender. The defendant had no authority of law thereafter to enforce other payment by seizing his property. In doing so, he ceased to be an officer of the law, and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, and with force and arms, seized, la ken, and detained the personal property of another.”
See, also, U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240.
So it will he seen tha t, so far as the case at bar is concerned, there is nothing in the Ayers Case that justifies the contention of the defendant that the state of Kansas is in reality the defendant in this action. The complainant has predicated its case on the want of legal authority of the defendant under the laws of Kansas to do the act complained of. The superintendent of insurance seeks to justify his action under the statutes of the state, but, in the words of the supreme court:
“The court is not ousted of jurisdiction because he asserts authority as sucii officer. To make out his defense, he must show that his authority was sufficient in law to protect him.”
The defendant insists that under the laws of Kansas he not only has authority to arbitrarily refuse permission to insurance companies to do business in the state, but also to revoke such licenses without giving any cause therefor. The complainant contends that there is no law of the state authorizing the defendant to revoke its certificate for the reasons given by him. It further contends that, if the state has given such authority, it is repugnant to the constitution of the United States. The case chiefly relied on by defendant is Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265, and it becomes necessary to briefly examine that case, and see what were the facts, and just what was decided by the court. It appears from the record that one D. W. Wilder, then being superintendent of insurance of the state, arbitrarily refused to issue a permit to said insurance company, though solvent, responsible, and law-abiding, to continue its business in the [894]*894state. Whether it was mere caprice of the superintendent, or a desire for notoriety, or even a baser motive, does not appear. The court decided that the defendant’s duties in granting authority to insurance companies were not entirely of a ministerial nature, but were largely discretionary, and could not be controlled or directed by the writ of mandamus. It is not to be inferred, however, that the court meant to decide that there was no limit to discretionary power, nor -was there involved in that-case the power of the superintendent to revoke a certificate of authority already issued. It is not my purpose to detract from that decision, but it is safe to say that no court will be likely to enlarge or extend by implication the doctrine therein enunciated. In the case'at bar the superintendent had exercised his discretionary powers, and had found the company éntitled to a certificate to do business in the state, and had issued authority for the period of a year, received the fees ($100) therefor, and subsequently collected other fees and charges from the company, none of which sums of money have been returned or tendered to the company. The defendant shortly afterwards revoked or attempted to revoke the certificate, alleging as a cause that the company refused to pay its losses. The complainant asserted that the claim of loss was fraudulent and illegal, and desired to contest it in the courts.
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FOSTER, District Judge
(after stating the facts as above). The defendant challenges the jurisdiction of the court in this: that the bill charges the wrongful acts of the defendant to have been done as superintendent of insurance, and purely in his official capacity, and seeks by mandatory injunction of this court to compel said officer to reissue the certificate of authority, and is in reality a proceeding against the state of Kansas. It will be observed that the restraining order heretofore issued is the ordinary injunction. It will be further observed that the bill charges that the defendant’s acts were wrongful and malicious, and without authority of law, and illegal and void. It is earnestly contended by counsel for the defendant that this court has no jurisdiction, and in. support of this contention counsel relies largely upon In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164.
In the case of Reagan v. Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, which was long subsequent to the Ayers Case, the supreme court had occasion to review at great length this question, and there laid down the doctrine that the court had jurisdiction, and that it was not in violation of the eleventh amendment of the federal constitution to proceed by injunction against an officer of the state seeking to enforce the provisions of an unconstitutional act of the legislature, and the order in that case enjoined the defendants in their official capacity as state officers. The court in said case (page 390, 154 U. S., and page 1051, 14 Sup. Ct.) uses the following language:
“Neither will the constitutionality of the statute, if that be conceded, avail to oust the federal court of jurisdiction. A valid law may be wrongfully administered by officers of the state, and so as to make such administration an illegal burden and exaction upon the individual. * * * They may go beyond the powers thereby conferred, and, when they do so, the fact that they are assuming- to act under a valid law will not oust the courts of jurisdiction to restrain their excessive and illegal acts.”
In Cunningham v. Railroad Co., 109 U. S. 446, 452, 3 Sup. Ct. 292, 297, it was said:
[893]*893•‘In these casos lie is not sued as, or because lie is, the officer of Hie government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him.”
In Re Ayers, 123 U. S. 500, 8 Sup. Ct. 180, the court quotes with approval the doctrine established in Allen v. Railroad Co., 114 U. S. 311, 5 Sup. Ct. 925, 962, and Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, and says:
“The vital principle in all such cases is that the defendants, though professing to act as officers of the state, arc threatening a violation of the personal or property rights of the complainant, for which they are personally and individually responsible. * * " ‘A defendant sued as a wrongdoer, who seeks to substitute the state in his place, or to justify by the authority of the slate, or to defend on the ground that the state has adopted his act and exonerated him, eaunot rest on the bare assertion of his defense. He is bound to establish it. * * * It is necessary, therefore, for such a defendant, in order to complete his defense,' to produce a láw of the state which constitutes his commission as its agent and warrant for his act. This the defendant in the present case undertook to do.’ ”
And in the Poindexter Case, cited, the court uses this language:
“The case, then, of the plaintiff below, is reduced to this: He had paid the tax demanded of him by a lawful tender. The defendant had no authority of law thereafter to enforce other payment by seizing his property. In doing so, he ceased to be an officer of the law, and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, and with force and arms, seized, la ken, and detained the personal property of another.”
See, also, U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240.
So it will he seen tha t, so far as the case at bar is concerned, there is nothing in the Ayers Case that justifies the contention of the defendant that the state of Kansas is in reality the defendant in this action. The complainant has predicated its case on the want of legal authority of the defendant under the laws of Kansas to do the act complained of. The superintendent of insurance seeks to justify his action under the statutes of the state, but, in the words of the supreme court:
“The court is not ousted of jurisdiction because he asserts authority as sucii officer. To make out his defense, he must show that his authority was sufficient in law to protect him.”
The defendant insists that under the laws of Kansas he not only has authority to arbitrarily refuse permission to insurance companies to do business in the state, but also to revoke such licenses without giving any cause therefor. The complainant contends that there is no law of the state authorizing the defendant to revoke its certificate for the reasons given by him. It further contends that, if the state has given such authority, it is repugnant to the constitution of the United States. The case chiefly relied on by defendant is Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265, and it becomes necessary to briefly examine that case, and see what were the facts, and just what was decided by the court. It appears from the record that one D. W. Wilder, then being superintendent of insurance of the state, arbitrarily refused to issue a permit to said insurance company, though solvent, responsible, and law-abiding, to continue its business in the [894]*894state. Whether it was mere caprice of the superintendent, or a desire for notoriety, or even a baser motive, does not appear. The court decided that the defendant’s duties in granting authority to insurance companies were not entirely of a ministerial nature, but were largely discretionary, and could not be controlled or directed by the writ of mandamus. It is not to be inferred, however, that the court meant to decide that there was no limit to discretionary power, nor -was there involved in that-case the power of the superintendent to revoke a certificate of authority already issued. It is not my purpose to detract from that decision, but it is safe to say that no court will be likely to enlarge or extend by implication the doctrine therein enunciated. In the case'at bar the superintendent had exercised his discretionary powers, and had found the company éntitled to a certificate to do business in the state, and had issued authority for the period of a year, received the fees ($100) therefor, and subsequently collected other fees and charges from the company, none of which sums of money have been returned or tendered to the company. The defendant shortly afterwards revoked or attempted to revoke the certificate, alleging as a cause that the company refused to pay its losses. The complainant asserted that the claim of loss was fraudulent and illegal, and desired to contest it in the courts. Thereupon the defendant, without investigating the facts, laid down the ultimatum that the company should pay the claim or quit doing business in the state. The company refusing to yield, the defendant revoked its authority:to do business in the state, and further ordered that it “cease soliciting business, receiving premiums, and issuing policies after this date in this state.”
Reverting, again, to the proposition before stated, has the superintendent of insurance, under the statutes of Kansas, the authority, arbitrarily and without cause, to revoke and cancel the certificate of the complainant to transact business in the state? The cause assigned for the act of the defendant is no cause recognized by law. The complainant has the legal right to resort to the courts for the settlement of controversies between it and its policy holders, and to say that it must either forego its legal rights in that respect, and submit to pay all claims made against it, or quit business in the state, is arbitrary, unreasonable, and dictatorial. Is there anything, express or implied, In the statutes of Kansas, indicating any such intent of the legislature, or giving any authority to the superintendent to dictate such terms? In the case of Insurance Co. v. Wilder, supra, the court uses this language:
“One of the principal objects of the act creating the insurance department, and the office of superintendent, is the protection of the insured by excluding from the state such companies as are unsound and irresponsible. To accomplish this, large powers and considerable discretion must necessarily be lodged with some one.”
Again, the court says:
“The superintendent has no right to discriminate in favor of one company and against another of the same character and standing, nor to arbitrarily and capriciously exclude any company from the state. He is expected to honestly investigate, and determine, under the rules furnished for his guidance, whether the conditions and requirements of the legislature have been complied with.”
[895]*895In reference to the authority of the superintendent of insurance to revoke! the authority granted to companies to do business within the state, 1 Gen. St. 1889, p. 971, § 11 (paragraph 3324), provides as follows:
“Whenever it shall appear to the superintendent of insurance from the report of the person appointed by Mm, or oilier satisfactory evidence, that the affairs of any company, partnership or association, not organized under the la,wa of ibis state, are in an unsound condition, he shall revoke the authority granted to such company to do business in this state, and cause a notice thereof to be published in at least one newspaper published in the city of Topeka; and after the publication of such notice, it shall not be lawful for the agents of such company to procure any new applications for insurance, or issue any ne(w policies.”
Section 17 of the act provides what fees and moneys shall be paid by foreign insurance companies to entitle them to licenses to transact business within (he state, and it is provided by the last clause of said section as follows:
“In case of neglect or refusal by any such company to pay said sum, the superintendent of insurance shall revoke the authority or license granted such company.” (
Section 80 (paragraph 3404) 1 Gen. St. 1889, reads as follows:
“Whenever any insurance company incorporated under tlie laws of any other state or country shall become liable to pay any loss to any person in this state, and shall neglect or refuse for three months after final judgment to pay the same, and all costs of suit incurred in prosecuting the claim of the insured to judgment, the said company may be perpetually enjoined from doing any business in this state until said claim and costs shall be fully paid.”
The act of 1889 (chapter 159) contains the following provisions concerning the issuance and revocation of certificates of authority:
“Provided, however, that the superintendent of insurance shall have no power or authority to refuse an insurance company a certificate of authority to do business in the state, if such company is solvent, and has fully complied with the laws of the state; and provided further, that such superintendent of insurance shall have no authority to revoke or suspend the certificate of authority of any association or corporation transacting insurance business, if such association or corporation is solvent and complies with all the laws of the state. And also, it is further provided, that in all actions brought against the superintendent of insurance to compel him by mandamus or otherwise, to issue certificates of authority to any association or corporation desiring to transa (it insurance business in this state, and in all cases brought against the superintendent of insurance to restrain or enjoin him from revoking or suspending the ceriifieate of authority of any association or corporation transacting insurance business in this state, such action or actions must be commenced and maintained in the county where the office of the superintendent of insurance is located and carried on.”
These are the only'provisions found in the statutes of Kansas touching the authority of the superintendent of insurance to revoke certificates granted to insurance companies to do business in the state, and, so far from giving the authority assumed by the defendant in this case, it clearly appears that Ills action is beyond any express or implied sanction of the law; indeed, section 80, above quoted, indicates clearly that the legislature intended that insurance companies should have the right to contest claims against them in the courts, and it provides that, unless judgments so obtained against them shall be paid within the period of three months, they shall be prevented from transacting [896]*896any further business within the state, not by revocation of their license, but by judicial process.
The complainant contends that the act of 1889, which was passed subsequent to the decision of the Wilder Case, has materially restricted the powers of the superintendent of insurance. That act is entitled “An act relating to insurance, and amendatory of section 21 of chapter 132, Laws of 1885,” etc. Here are two clauses named in the title, — the first, an act relating .to insurance; the second, amendatory of another act. Section 1 is chiefly given to amending the law of 1885 concerning mutual fire insurance companies, but there are three provisos inserted in the section. These provisos, in terms, limit and restrict the powers of the superintendent of insurance, not to mutual fire insurance companies alone, but to all insurance companies. Note the general terms of the second and third provisos before quoted. The superintendent of insurance shall have no authority to revoke or suspend the certificate of any association or corporation transacting business if such corporation is solvent and complies with the laws of the state. The third proviso requires any association or corporation bringing suit to compel the superintendent to issue certificates, or to enjoin him from revoking them, to bring the suit in the county where he keeps his office, which is the county where this suit is brought. Now, can it be said that the legislature intended that all these regulations and privileges should apply to mutual fire insurance companies alone, while the great mass of the insurance business was transacted by other companies? The title of the act is sufficiently broad, and the terms of the provisos sufficiently general, to include any and all insurance companies; and it is evident to me such was the legislative intent.
In reference to the authority of this court to grant the relic1' under the last proviso of the act, it was expressly decided in the Iteagan Case (see pages 391, 392, 154 U. S., and page 1047, 14 Sup. Ct.) that under a similar statute of the state of Texas the federal courts have equal jurisdiction with the courts of the state, if complainant was a citizen of another state. If the statutes of Kansas would bear the construction contended for by defendant, giving him authority to revoke the certificates of authority of insurance companies because they refused to give up their rio’hts to resort to the courts for redress and settlement of disputed claims, the question arises, could the state impose such terms on the companies? It must be admitted that the state of Kansas has the right to exclude foreign corporations entirely from doing business in the state, and it may impose any terms not objectionable to the constitution or laws of the United States, on any such corporations, as a condition to their doing business in the state. Insurance Co. v. French, 18 How. 404; Paul v. Virginia, 8 Wall. 168; Insurance Co. v. Morse, 20 Wall. 456; Doyle v. Insurance Co., 94 U. S. 535; Barron v. Burnside, 121 U. S. 199, 7 Sup. Ct. 931. The defendant relies upon the Doyle Case to sustain his contention. In that case, the laws of Wisconsin in terms required the defendant to do the act complained of, to wit, revoke the license of the insurance company, and the company had signed and filed its consent to the law as a condition to receiving permission to do business in the state, which [897]*897consent was that it would not remove its suits from the state to the federal courts. This decision,' sustaining the law, was made by a divided court; hut in the later case of Barron v. Burnside, 121 U. S. 199, 7 Sup. Ct. 931, the court affirmed the Morse Case, which held such a stipulation invalid, and explained and limited the Doyle Case. The court, speaking of the rule established in the Morse Case, says (94 U. S. 538):
“This was upon the principle that every man is entitled to resort to all the courts of the country, to invoke the protection which all the laws and all the courts may afford him, and that he cannot barter away his life, his freedom, or his constitutional rights.”
The temporary injunction will he granted.