
    State of Missouri at the Relation of Joseph B. Thompson, Superintendent of Insurance (R. E. O’Malley substituted as relator), Relator, v. Nike G. Sevier, Judge of the Circuit Court of Cole County, American Colony Insurance Company et al.
    80 S. W. (2d) 893.
    Court en Banc,
    February 7, 1935.
    
      Boy McKittrick, Attorney General, and Gilbert Lamb, Assistant Attorney General for relator; G. C. Weatherby of counsel.
    
      W. T. Bagland for respondent.
    
      B. J. Folonie, E. B. Morrison and Homer H. Berger for interveners; Igo, Carroll, Higgs & Keefe of counsel.
   ELLISON, J.

This is an original proceeding in prohibition instituted in this court on January 24, 1933, by Joseph B. Thompson, then Superintendent of Insurance of the State of Missouri as relator, against Hon. Nike G. Sevier, Judge of the Circuit Court of -Cole County, Missouri, as respondent.

On December 30, 1929, the American Colony Insurance Company and a large number of other stock fire insurance companies made an increase of 16f per cent in their rates for fire and windstorm insurance in Missouri, and gave notice thereof to the Superintendent of Insurance as required by Section 5864, Revised Statutes 1929. On May 28, 1930, the superintendent disapproved the rate increase. A week later, on June 5, 1930, some fifty of the insurance companies filed an action in the Circuit Court of Cole County to review the foregoing order denying said rate increase, in accordance with Section 5874, Revised Statutes 1929. Thereafter some twenty-four other stock fire insurance companies entered the review proceeding as plaintiffs, making seventy-four in all.

At the time the review proceeding was instituted, and thereafter on several occasions, the circuit court entered orders authorizing the collection of the new rate by the insurance companies and the impounding of the disputed or increased portion thereof with the Superintendent of Insurance. On January 21, 1933, the respondent judge, Hon. Nike G. Sevier, entered the last of said orders in the review proceeding, directing that all funds theretofore collected from the rate increase and impounded with the Superintendent of Insurance be paid into the registry of the court and that thereafter the insurance companies pay into court quarterly the amounts collected by them on the rate increase.

In the instant proceeding the Superintendent of Insurance as relator challenges the jurisdiction of the respondent judge and the circuit court to make said order of January 21, 1933, authorizing the collection and impounding of said rate increase, and prays that he be prohibited from “taking any further action or asserting any further jurisdiction in the matter of said order so made by him on January 23 (21), 1933, and its enforcement.” Our preliminary rule in prohibition was issued. The respondent judge made answer and return thereto. The several fire insurance companies each filed its “intervening petition and answer.” The relator then filed motion for judgment on the proceedings.

The issues presented by the record are the same as those in State ex inf. Roy McKittrick, Attorney General, relator, v. American Colony Insurance Company et al., respondents, 336 Mo. 406, 80 S. W. (2d) 876, a quo warranto proceeding, the opinion in which is delivered herewith. For the reasons stated in that opinion we find the respondent exceeded his jurisdiction in entering said order of January 21, 1933, directing the collection of said 16| per cent rate increase and the impoundment of the disputed portion thereof in the registry of the court. Accordingly our preliminary rule in prohibition is made absolute and the respondent is prohibited from taking any further action or asserting any further jurisdiction in the matter of said order, and its enforcement, in so far as the same pertains to and authorizes the continued collection of said rate increase.

All concur, except Leedy, J., not sitting.  