A fire insurance company sued to enjoin state officers from
enforcing an order fixing its rates, and from revoking its license
for failure to obey the same, alleging diversity of citizenship
and
Page 280 U. S. 169
that the order, and certain state statutes if construed to
sanction it, were violative of the due process clause of the
Fourteenth Amendment. The bill prayed for an interlocutory
injunction on these grounds, but the plaintiff, without pressing
them, applied for and obtained an interlocutory injunction
enjoining the revocation of license only and based on the ground
that such revocation would not be authorized by the state statutes,
considering them as valid. Defendants applied to this Court for a
mandamus to compel the district judge to call to his assistance two
other judges under Jud.Code § 266, U.S. Title 28, § 380, to
determine the prayers for interlocutory and final injunction as
made in the bill.
Held:
1. That the scope of the judge's decision was to be determined
by the words of his order, which accorded with the statement of his
intention in granting it contained in his return to the order to
show cause. P.
280 U. S.
172.
2. That the decision, as so explained, being based only on a
construction of the state statutes, three judges were not required
by Jud.Code § 266 for its rendition, and, as there was jurisdiction
by diversity of citizenship, appeal lay to the Circuit Court of
appeals.
Id.
3. The fact that the bill raised the constitutional issue did
not empower the defendants to force a decision of it or prevent the
plaintiff from limiting to the narrower ground its claim to
interlocutory relief.
Id.
Petition for a writ of mandamus to require the Honorable John C.
Pollock, District Judge, to call to his assistance two other judges
to determine the prayers for interlocutory and final injunctions in
the suit of the Agricultural Insurance Company, and other like
suits, pending in his district against the Insurance Commissioner
and the Attorney General of Kansas. The matter was heard upon the
petition and the return made by the respondent to a rule to show
cause. The rule is discharged and mandamus denied.
Page 280 U. S. 170
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a petition for a writ of mandamus directing Judge
Pollock, of the district court of the United States for the
District of Kansas, to call to his assistance two other judges
under § 266 of the Judicial Code as amended (U.S.Code, Title 28, §
380), to determine the prayer for interlocutory and final
injunctions against the petitioners in certain suits. An order to
show cause was issued, and the judge has made a return. We are of
opinion that the writ must be denied upon the incontrovertible
portions of the return, and therefore need to consider nothing
else.
One hundred and fifty stock fire insurance companies doing
business in Kansas have bills in equity, of which the bill
considered in this case is a type, pending in the district court of
the United States for the District of Kansas. These bills allege
diversity of citizenship and also that the defendant Commissioner
of Insurance, one of the present petitioners, has made an order
affecting the rates to be charged for the issue of policies of fire
insurance that is confiscatory and contrary to the Fourteenth
Amendment, but that, if not obeyed, he will enforce by revoking the
plaintiffs' licenses to do business in Kansas. The bills also
allege that the statutes of Kansas, as construed to authorize the
order, are unconstitutional like it, and for the same reason. The
bills pray for a restraining order
ad interim, an
interlocutory injunction after a hearing before three judges, and a
permanent injunction by final decree.
On April 3, 1928, the parties appeared before the present
respondent, and, on his suggestion, the defendants, the present
petitioners, agreed to take no action that
Page 280 U. S. 171
would be subject to restraint by a temporary restraining order
without first giving notice of intention to do so in ample time for
the plaintiff to resort to the Court. An order embodying the
agreement and stating that the Court therefore refrained from
entering any temporary restraining order was entered at that date,
and remained in force for over a year. Shortly after the entry, the
petitioners presented to the judge a motion to dismiss the suit on
the ground that the matter was
res judicata by reason of
certain proceedings in the state court, and also for want of
equity, which, after argument, was overruled. On May 10, 1929, the
case was referred to a master to make findings of fact and
conclusions of law concerning the issues in the case. This was upon
motion of the plaintiff made on May 4. On May 6, the defendants,
the petitioners, notified the plaintiff that they would proceed to
enforce the rate order on and after May 20, 1929, and on May 7
filed a motion for a hearing before three judges on the plaintiff's
application for an interlocutory injunction. This came up on May
10, along with the plaintiff's motion to refer to a master. The
plaintiff "definitely stated that it did not intend to press its
prayer contained in its bill of complaint," meaning thereby its
prayer for an interlocutory injunction based upon the asserted
unconstitutionality of the statute and rate orders, and the judge
said that the defendants' motion did not pertain to any matter
before the Court, and intimated that he was ready to grant a
restraining order. A few days later, the plaintiff moved for an
interlocutory injunction against the cancellation of the licenses
of the plaintiff and its agents. The defendants objected and asked
the judge to call in two others. This the judge declined to do, and
issued an order restraining the defendants from cancelling licenses
because of supposed violations of the rate order in question. The
defendants treat this as satisfying the prayers of the bill and
requiring three judges to be within the jurisdiction of the court
to grant.
Page 280 U. S. 172
The judge knows at least what he intended and supposed himself
to do. He states that it appeared to him that the only question
before him was the construction of the ratemaking statute of
Kansas, the plaintiff conceding its constitutionality for the
purposes of the motion. He construed the act as not warranting a
revocation of licenses for violation of the rate order or for
anything that the plaintiff appeared to have done, and says that
the injunction granted by him was not granted upon the ground of
the unconstitutionality of the statute, but restrained only
something that, by his construction, the statute did not allow. We
see no reason why the injunction should be held to go further than
the judge says that he intended it to go, or than its express
words, or why those words should not be explained as a construction
of the statute, rather than an adjudication that it is void. But,
if the injunction is taken as we say that it should be, it is not
within Judicial Code § 266 as amended, three judges were not
necessary, and the petitioners have no right to come here.
Ex
parte Buder, 271 U. S. 461.
Moore v. Fidelity & Deposit Co., 272 U.
S. 317.
Smith v. Wilson, 273 U.
S. 388. On the other hand, as there was jurisdiction of
the cases by reason of diversity of citizenship as well as on the
constitutional ground, an appeal lay to the circuit court of
appeals if the petitioner thought the judge's construction wrong.
The judge was clearly right in treating the plaintiffs in the
several cases as masters to decide what they would ask, and in
denying to the defendants, the petitioners, the power to force upon
the plaintiffs a constitutional issue which at that moment they did
not care to raise. The fact that the bills raised it did not
prevent them from presenting a narrower claim and contenting
themselves with the granting of that. Other serious difficulties in
the way of the petition are set up in the return, but we think that
the foregoing answer makes further argument unnecessary.
Rule to show cause discharged.
Mandamus denied.
