(dissenting).
In this case the learned chancellor found these appellant Insurance Companies guilty of violating the anti-trust *440laws of the state. The penalties imposed upon them amount in the aggregate to over eight million dollars. The highest penalty assessed against any company is over one hundred ninety-five thousand dollars. This amount was assessed against several companies. In view of the importance of the decision in this case, not only to these appellants, ( because of the large- amount of these penalties assessed' against them, and the fact that by this decision of the chancellor they have been found guilty of violating the anti-trust laws of Mississippi, and therefore cannot continue business in the state in the manner transacted by them in the past, but also of the importance of the decision to the citizens and property owners in this state who necessarily must insure their property against loss by fire — in fact, practically every resident and property owner in the state is vitally interested in the-decision in this case — for these reasons I shall set forth-as briefly as possible the reasons why I think the court erred in finding these appellants guilty of violating this law.
Though the record is very voluminous, the material facts are uncontroverted. The law governing this case is not difficult to be understood. The difficulty, if there be any, is in finding what legitimate inferences a court may infer from the uncontradicted proven facts. Before these penalties could be assessed against these appellants the testimony must warrant a finding that they have entered into a combination, contract, understanding, or agreement, express or implied, among themselves to fix or maintain the price of fire insurance within the state of Mississippi; or, have delegated to the Mississippi Rating Bureau the power to fix these rates in Mississippi, and have agreed to be bound by the rates as fixed by this bureau, or that the agents of these companies have entered into any such combination, contract, or agreement. It will be unnecessary to discuss the question of an agreement or combination among the agents, because the testimony of all of the agents denied any such agreement or combination, and the chan*441cellor decided that no such agreements were entered into by the agents.
The theory of the appellee is that the testimony in the case warrants the finding of the chancellor that the Mississippi Bating Bureau was but the agent of the Southeastern Tariff Association, a voluntary association of insurance companies with headquarters in Georgia; that the Southeastern Tariff Association agreed in advance in the state of Georgia upon the rates of insurance to be charged in Mississippi; that these rates were then sent to the Mississippi Bureau with instructions to be sent out and enforced in this state.- There is no direct evidence of any such agreement or understanding, and, if it is to be inferred at all, it must be inferred from circumstances. The testimony in the case shows that for practically fourteen years in ninety-five per cent, out of every one hundred per cent, fire insurance rates were uniform; that these rates were the rates advised to be charged by the Mississippi Bureau. This ninety-five per cent, of uniformity of rate, in connection with other facts contained in the record, and which will be more fully discussed hereafter, constitutes the direct testimony in the case. There is no direct testimony of an agreement directly among the insurance companies, or of an agreement to delegate the rate-making power to the Mississippi Bureau. In other words, the only testimony in the case relating to the violation of this law is circumstantial testimony. The important question, therefore, is whether or not, from this circumstantial testimony, in the absence of direct testimony, the chancellor was warranted in penalizing these appellants.
Before entering upon the discussion of the facts in this case I deem it advisable here to set out the law with reference to circumstantial testimony, as well as the law with reference to the presumption of honesty, innocence, and fair dealing, which must both be applied in this case. In my opinion, when these appellants have been given the presumption of honesty and fair dealing, and that their acts and conduct are presumed to be legal and proper until the *442circumstantial testimony in the case has shown otherwise, and is inconsistent Avith legality and fair dealing, then this presumption is never overthrown, because the circumstantial testimony in no wise controverts the direct testimony and is not inconsistent with the legality and honesty of these appellants. The theory of innocence and legality is not only the more reasonable theory to be drawn from the testimony, but is the theory supported by the uncontradicted direct testimony in the case, and in no wise is contradicted by any circumstantial testimony.
In the case of U. S. Mutual Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60, the giving of the following instruction was approved by the court:
“Mere possibilities, conjectures, or theories should not be allowed to take the place of evidence; where the weight of credible testimony proves the existence of a fact, it should be accepted as a fact in the case. Where, if at all, proof is wanting and the deficiency remains throughout the case, the allegation of fact should be deemed not established.”
Though this is a civil proceeding, it is to recover penalties, and therefore is akin to a criminal prosecution. The duty rests upon the state to satisfy the court, at least by a preponderance of the testimony, of the violation of the law by the accused.
In 12 C. J., p., 639, par. 234, the rule is thus correctly stated in reference to circumstantial testimony:
“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, or all of which, are just as consistent Avith a lawful purpose as with an unlawful undertaking, are insufficient 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 estab*443lished by a preponderance of the evidence. This degree of proof, however, is necessary. The evidence must do more than raise a suspicion.”
Again, in 12 C. J., p. 639, par. 231: “Conspiracies cannot be established by a mere suspicion, nor does evidence of mere relationship between the parties or association show a conspiracy.”
Again, in 22 C. J., p. 144: “It is a well-established principle that the presumption is always in favor of innocence, and this presumption, although rebuttable, remains good, and must be acted on until it is disproved. While this principle is most important in criminal cases, it is frequently invoked and relied on in civil cases, in which it restates the alleged presumption against illegality, etc., as a regulation of the burden of evidence, and applies whether the question of innocence or guilty is directly or only collaterally involved.”
In 17 Cyc., p. 817, the rule is thus stated: “A conclusion is not supported by circumstantial evidence unless the facts relied on are of such a nature and so related to each other that no other conclusion can fairly or reasonably be drawn from them, and this requirement is strictly enforced where decisive direct evidence is probably obtainable, but is not produced. A fortiori the circumstances must agree with and support the hypothesis which they are adduced to prove. A fact cannot be established by circumstances which are perfectly consistent with direct, uncontradicted, and unimpeached testimony that the fact does not exist. Where circumstantial evidence is relied upon the circumstances must be proved and not themselves presumed.”
In considering this case it must be borne in mind that a violation of this anti-trust law by these companies is by law made a felony.
The law relating to circumstantial testimony and the presumption of honesty, fair dealing, and the legality of conduct is elementary and uniform in this country. This *444court has announced these rules in many cases, from some of which we will briefly quote.
In the case of Wilkins v. Riley, 47 Miss. 306, it is stated: “It seems to us that public policy and the justice of this case concur in leading to the conclusion that the judgment ought to be affirmed. It is a rule that every presumption of law is in favor of the legality of a contract, and it is incumbent on a party alleging its- illegality to show everything to render it so. Brown v. Freeland, 34 Miss. 181. So, when contracts of doubtful import are susceptible of two interpretations, one legal and the other illegal, that construction will be adopted which will make the agreement legal. Riley’s Adm’rs. v. Vanhouten, 4 How. 428; Merril v. Melchoir, 30 Miss. 516. If these rules as to the interpretation of contracts be applied to the notice accompanying the plea in the case at bar, it falls far short of invalidating the note sued on.”
In Wilkie v. Collins, 48 Miss. 496, it is said: “There is always a presumption that every individual conforms his conduct to the requisitions of duty, as prescribed by law. It belongs to universal jurisprudence, that innocence of an act which the law forbids and denounces as criminal shall be presumed.”
In Clay v. Allen, 63 Miss. 426, it is said: “The Illegality of the dealing was alleged by appellant, and it is certainly no new doctrine in this state to say that it was incumbent on him to prove it, and to show everything necessary to make it so. The presumptions of law are in favor of, rather than against, the validity of contracts, and if a contract of doubtful import is susceptible of two interpretations, the one legal and the other illegal, that construction must be adopted which renders it lawful.”
The following quotation from Orrell v. Bay Mfg. Co., 87 Miss. 632, 40 So. 429, is here set out: “Where a contract is susceptible of two interpretations and capable of being fulfilled in two distinct ways, one permitted and the other condemned by the law, that construction will be placed *445upon the contract which will validate it. The law presumes a lawful intent, instead of an illegal one, on the part of all contracting parties. These considerations are decisive of the case at bar, though we adhere in every particular to the propositions of law announced upon the previous consideration of this case, as reported in 83 Miss. 800, 36 So. 561.”
In Wherry v. Latimer, 103 Miss. 524, 60 So. 563, 642, it is said: “The law presumes that every man is sane and honest; that all his acts are dictated by correct motives, and are the result of his own independent, intelligent, and unaided judgment. It also presumes that all his contracts are valid, and were entered into freely and voluntarily in the exercise of an intelligent discretion. It never presumes dishonesty, mental incapacity, fraud, undue influence, or any other matter tending to vitiate a contract; but always requires proof of facts from which such dishonesty, mental incapacity, fraud, undue influence, or other matter may be reasonably inferred. And, whenever any person seeks to cancel or overturn a contract on the ground of fraud or undue influence, he must clearly establish by his testimony such fraudulent acts or the exercise of such undue influence as will vitiate the contract, or else a state of facts from which the reasonable and natural inference is that the contract was the result of such fraudulent acts or undue influence.”
Relating particularly to circumstantial testimony, the law is thus stated in 10 R. C. L., p. 1007:
“A theory cannot be said to be established by circumstantial evidence, either in a civil or a criminal case, unless the facts and circumstances shown are not only consistent with such theory, but absolutely inconsistent with any other rational theory.”
This rule was lately announced by this court, speaking through my Brother Ethridge in the case of Banks v. Banks (a civil suit), 118 Miss. 783, 79 So. 841, as follows:
“Where an offense of this kind is sought to be proven *446by 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 truth, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence.”
An agreement or understanding either express or implied in violation of the anti-trust law may, of course, be proven by circumstantial testimony, but, in the language of the Banks case, supra: ■
“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 truth, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence.”
In this case we have specific denials of agreements, understandings, or combinations to fix the price of insurance on the part of the companies, either themselves or through their agents; and we have the comprehensive denials of any delegation of the power to fix rates to the rating bureau. In the testimony we have the direct testimony of all of the local agents that they made no such agreements and had no such understandings among themselves; that they had never been informed by the companies of'any agreement among themselves, neither had they been instructed or informed of any agreement to delegate the rate-fixing power to the rating bureau; that, so far as they knew, the rates furnished them by the Mississippi Rating Bureau were advisory rates, are not obligatory or binding, either upon the agents or upon the companies.
*447The various officers of the Insurance Companies who had charge of the rating department of their respective companies each and every one testified that there was no agreement among the insurance companies to fix or maintain the rates of insurance within the state of Mississippi. Neither had they delegated to the rating bureau of Mississippi any such authority; that, in passing upon the insurance policies sent to them by their agents in Mississippi, each and every company acted independently in accepting or rejecting the policies as written and the rate as fixed by the local agents. Many of these companies checked these insurance policies by the advisory rates sent them by the Mississippi Bureau. Some of these officers testified that they did not even check or compare the policies with the advisory rates of this rating bureau, but that they accepted the rate as fixed by their local agent as being- a proper rate; that, if, upon comparison with the advisory rate of the Mississippi Bureau, they found it was lower than this rate or higher than this rate, and if in their judgment they thought the advisory rate was a proper rate, in that event the company would advise its agent to write the policy in accordance with this rate, -or to cancel the policy. It is shown that in many instances a company would not think the advisory rate proper, in which event it would order the policy canceled or written at a different rate. The testimony further shows that there were certain hazards or risks upon which certain companies were not willing to issue policies at all. All of which testimony will be discussed more in detail later on in this opinion!
We will attempt briefly to state the material facts npon which the appellee relies for an affirmance.
There was introduced in evidence a book published by the Southeastern Tariff Association, called “Quarter-Centennial History of the Southeastern Tariff Association, 1882-1907.” As its name indicates, it is a history of this association. This book shows that prior to 1880 there was some association of fire insurance companies with head*448quarters in New York, the object and purpose of which was to fix and maintain fire insurance rates throughout the United States; that in 1880, because of fire losses, this board was practically abandoned, and the rate-making power left to the local agents over the country; that this policy became unwise, and resulted in the formation in 1882 of the Southeastern Tariff Association. This association was a voluntary organization of these insurance companies, or of certain insurance companies by which the power to make and maintain rates of insurance within the territory covered by the organization was delegated to this association. It seems that at first the state of Mississippi was not included within the jurisdiction of this association, but was in the year 1890 included therein. Prom that year until 1900 the Southeastern Tariff Association fixed the rates of insurance, as well as maintained them, in this state. In 1897 these companies which were members of the Southeastern Tariff Association were indicted in this state for a violation of the anti-trust law. A demurrer was overruled in the circuit court to this indictment. The case was appealed to the supreme court, and the court held that the demurrer should have been sustained. This case (Fire Insurance Companies v. State) is reported in 75 Miss. 24, 22 So. 99. It is unnecessary to set out the facts or the decision of the court in that case. After this decision the Southeastern Tariff Association, through its proper officer and the attorney-general of Mississippi, agreed that this association would withdraw from the state of Mississippi, and the state would not further prosecute it for a violation of these laws. The testimony of this officer of the Southeastern Tariff Association is to the.effect that this association has kept this agreement; that it withdrew from the state of Mississippi, and has never since, either directly or indirectly, controlled or attempted to control the rate of insurance in Mississippi, or in any way operated within this state. Returning, however, to this history counsel for appellee quotes the following from it:
*449“The fire insurance companies of the entire country, with full conviction of the absolute necessity for co-operation in rates and practices as means to an end, to-wit, the life and perpetuity of their corporations, had formed a national board with head offices in New York City, where every department of fire hazard shad received skillful consideration and rates were promulgated on this technical and wise review.” ■
He then refers to the organization in 1882 of this association, and makes the following quotation from this book:
“To organize, yes, and to maintain local boards; to establish, yes, and to enforce adequate rates.; . . . and then they piled ‘Ossa upon Pelion’ by adding uniform commission to agents.”
Reference is then made to a meeting of this association held in 1901. The proceeding of this meeting show that the association was then operating only in four states, “for inimical legislation had forced retirement from Louisiana and Mississippi in 1900.” We now quote from this meeting:
“The president refers to the resolution introduced, at the last annual meeting, . . . providing for inspection bureau for noncompact states; and he reports that, while no action has been.taken on that line specifically,-yet the agitation of the subject has resulted in the formation of an inspection bureau, and this will perform such service for compact and noncompact states alike. The association ratified what had been done on this line, and amplified the work, but prescribed specifically that it should not be undertaken in Mississippi until allowed by the officers of the law. It seemed very unfortunate that the people should be denied the benefits resulting from expert inspection of property for the prevention of fires, but it was unavoidable under existing conditions in that state.”
Counsel refers to that part of the answer of the appellants which reads as’ follows:
*450“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 discriminations in rates and to prevent, as far as possible, waste and expense, and to reduce the price of insurance for 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 dealing of the insurance companies, your defendants, with the insured, and reducing rates and lessening risks.
“The defendants would show that in order to meet the requirements of the insuring public it is necessary for them, and each of them, to use the rates and information furnished by the said Advisory Rating Company, and that their rates should be practically uniform. This arises from the necessity of the case, and not from any agreement, combination, or conspiracy on the part of the defendants to use said rates or have uniform rates. And the fact that the agents of many of the defendants throughout the state of Mississippi have been using rates advised or information given by the said rating company has resulted in the fact that the rates are practically and generally uniform, as they should be under similar circumstances and conditions, but the defendants aver that the use of the rates by them or their agents was not by reason of any agreement, combination, or conspiracy on their part to fix rates or price or premium to be paid on insurance, but they were acting at all times upon their independent judgment and discre*451tion, and ,not to defraud the public or anybody else, but simply for the purpose of adjusting their rates to a fair and proper standard, and stabilizing, as far as possible, the insurance business, and giving to the public the protection for which it paid a fair and reasonable price, and to place the small property owner on the same footing, as to rates, with the large insurers of the same class of property.”
There is nothing in this history, that shows that the Southeastern Tariff Association intended to violate the laws of the state of Mississippi by attempting to regulate the rates of insurance therein. It shows that these companies thought it important to have an inspection bureau to operate in all states, but that such bureau would not be put into Mississippi until allowed by the officers of the. law. In other words, if it shows anything it merely shows that the companies did not intend knowingly to violate the laws of the state of Mississippi. Right here, however, I might digress sufficiently to state that an inspection bureau of these insurance companies could legally operate within this state. An inspection bureau is merely a bureau which inspects insurable property, and makes a detailed report as to its condition, surroundings, construction, equipment, etc. Such a bureau is in no sense a rating bureau. The inspection is one thing and the rating of the inspected property another. An inspection bureau solely will not even attempt to advise the rate of insurance to be charged. An inspection and rating bureau both inspects the property, and either advises or fixes the rate of insurance to be charged thereon. It is not controverted by the appellee that a purely inspection bureau maintained by the insurance companies jointly would violate this law. In fact, the only violation of the law is the agreement or understanding, either expressed or implied, to fix or maintain rates of insurance or delegate to the rate-making bureau this power. This is the plain language of the act, and this, as we understand, is the only contention of coun*452sel for appellee. Consequently there could have been nothing illegal in the maintaining of a purely inspection bureau by these companies had they done so. However, there is not one particle of testimony in- the record to show that they even did this.
Neither is there any admission of any agreement or understanding to fix or maintaiil rates or to delegate this power to the rating bureau by the statement above quoted contained in the answer. This statement is practically a self-evident truth. By reference to the charter of the Mississippi Rating Bureau it will be seen that it was not chartered solely for the interest of insurance companies, but for the interest of the insuring public as well, 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 for all parties interested to its actual value,” and that, “in order to meet the requirements of the insurifig public, it is necessary for them, and each of them, to' use the rates and information furnished by the said Advisory Rating Company, and that their rates should be practically uniform. This arises from the necessity of the case, and not from any agreement, combination, or conspiracy on the part of the defendants to use said rates or have uniform rates.” In other parts of the answer these agreements and combinations are expressly denied. This part of the answer merely shows what, in the judgment of the insurance companies, is the effect of the use of these rates. Unless the rating company is an illegal organization of the staté of Mississippi, or unless it has not in good faith lawfully exercised the powers granted it- under its charter, then, though the practical results of the use of its rates is a uniformity of rates, no insurance company has violated the anti-trust laws by the use of these rates.
The answer in the Miller case, 126 Miss. 301, 88 So. 711, contained practically the same statement as that above quoted.
*453The history of the organization of this Mississippi Bureau is uncontradictedly as follows: After the Southeastern Tariff Association withdrew from the state of Mississippi in 1900, the insurance companies continued in business in the state. There were left in the hands of the agents some of the old rate books of this association. In addition thereto the agents had copies of the rates charged on specific pieces of property by them. In some instances an insurance company would adopt as its rate in the state the rate formerly used here by the Southeastern Tariff Association. The local agents upon this information wrote insurance. There was no inspection bureau to inspect property, and, unless different agents of companies did this work, the local agents arrived at the rates as best they could. Without going into the details as to the insurance business conducted during this time, it is characterized as having been in a chaotic condition. A! A. Weille organized in 1903 the Mississippi Inspection '& Advisory Rating Company. He seems to have been,its president, and the dominating factor in this company since its organization until the present time. The testimony shows that he had been engaged in the insurance business for many years in Mississippi, and also in Texas; that he was conversant/with the conditions existing in Mississippi; that while in Texas he had observed similar conditions, and the organization in that state of a similar bureau; that he believed there was a demand in Mississippi for the organization of such a bureau. He interested with him three other citizens of the city of Vicksburg, and these four gentlemen were granted a charter. Section 2 of the charter of this bureau reads as follows:
“The purposes for which said corporation is formed are as follows: 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 *454on 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.”
This company, however, until 1906 was unable to sell its advisory rates to insurance companies. It seems that these companies were doubtful as to whether or not the use by them of these rates would be violative of the Mississippi Anti-Trust Laws. In 1906 the then insurance commissioner of Mississippi wrote a letter to the attorney-general of the state, inquiring whether or not a purchase and use of these rates by the insurance companies would viqlate these laws. The attorney-general answered this letter as follows:
“I do not think that the purchase by insurance companies of the information to be compiled and printed by the Mississippi Inspection & Advisory Bating Company can be construed into a violation of the Mississippi statute against trusts and combines. In order to bring the several insurance companies purchasing this information within the condemnation of the statute, there must be some combination, contract, understanding, or agreement expressed or implied, among such companies, either directly or through the medium of said rating company, or between the company so purchasing and the said rating company, to adopt and use the rates and data so purchased as an agreed basis upon which the cost of insurance shall be regulated. As long as there is no such agreement by which the price of insurance shall be controlled, the transaction is a legitimate one, and cannot be in any way inimical to the public welfare. This ’opinion is written with full knowledge of the provisions of chapter 145 of the Code of 1906 and applies to the Code of 1906, as well as the law as it existed previous to October 1, 1906.”
Thereafter the rating company sent to each fire insurance company doing business in the state a copy of this opinion of the attorney-general, also a copy of its charter *455of incorporation. In order to show the nature of these letters, I quote in full that written to the Hanover Fire Insurance Company as follows:
“Vicksburg, Miss., Sept. 28, 1906.
“The Mississippi Inspection & Advisory Rating Company, chartered under the laws of the state of Mississippi and domiciled at Vicksburg, will begin active operations under, date of October 1st, pros. We herewith inclose certified copy of correspondence between the insurance commissioner’s and attorney-general of Mississippi’s office, which fully explains and sustains the right of this company to make advisory insurance rates, and the right of any insurance company doing business in Mississippi to purchase and use same. In addition to the attorney-general’s opinion, we have the concurring opinion in writing of Messrs. King, Spaulding & Little, of Atlanta, Ga., and Messrs. Mc-Laurin, Armistead & Brien, of Vicksburg, both of which firms' are well and favorably known in insurance circles. Several capable, trustworthy men are in consideration for the position of secretary (who will have entire charge of the management), and a careful selection will be made.
“We would be pleased to sell you our rates for Mississippi, and herewith inclose you a blank form of contract in duplicate, which we will appreciate if you will sign and return, whereupon the signature of this company will be affixed, and one of said copies returned to you. You will note that the contract explicitly states that there is no-obligation, expressed or implied, upon the part of the purchasers of our rates to observe same. Our terms are one per cent, of your annual gross premiums in Mississippi, less cancellations, payable for six months in advance, minimum charge not less than fifty dollars for any one company.
“We feel it proper to advise that no ratings furnished by company representatives will be issued by us, but any information relative to the condition of risks will be appreciated. Requests for advisory ratings should be made *456direct to this office, or through the medium of the local correspondent. A list of same will he furnished later. Below will be found a list of subscribers to date, and we would advise, further, that we have assurances from a large number of companies, not named in the list, of their intention to subscribe at an early date.”
Up to October 1, 1907, 40 companies subscribed for this information. The agreement, made between the rating company and the insurance companies, was as follows:
“In consideration of one per cent, of the gross premiums in Mississippi, less cancellations, of the undersigned insurance company, as returned to the insurance commissioner for the year-, amounting to $-, the receipt of one-half of which is hereby acknoAvledged, the remainder to be jpaid April 1,-•, the Mississippi Inspection & Advisory Rating Company does hereby agree to furnish to the undersigned insurance company and its agents all of its advisory rates to be made upon property in Mississippi, from October 1,-, to October 1,-; it being especially understood that there is no obligation, expressed or implied, direct or indirect, upon the part of this subscriber to observe or maintain said rates.”
No insurance company owned any stock in this Mississippi Rating Company. Mr. Weille was not. a rate expert, but he employed as his assistant or secretary a Mr. Taylor, now dead. Taylor was an engineer of experience. He had formerly been employed by the Southeastern Tariff Association. He was with this company until his death, several years ago. He was succeeded as secretary by Mr. Robertson, also an experienced engineer. The first Avork of this company was only that of making specific rates. It first classified, made maps of, and specifically rated all of the toAvns in Mississippi. The result of this work, namely, the specific rating of these towns under this contract, was sold to the insurance companies for this one per cent above shown by its agreement with them. Later on in 1911 it undertook also inspection work, and the re-*457suit of these inspections was furnished the companies, at which time it charged a rate of one and nine-tenths per cent.
It is contended by the appellee that neither Weille, Taylor, nor Robertson could make a basis rate and that this of itself is an evidence of the fact that this company was but an agent of the Southeastern Tariff Association. The testimony shows that during the year 1908 the local agents of the insurance companies insisted that the Mississippi Bureau furnish them with a book of basis rates. There was a great deal of property in the country upon which insurance was written which was not included in the specific rates for the cities and towns. Mr. Weille testifies that when his company first began doing business in Mississippi he made an examination of the different rates of insurance in force in a number of states, especially in the Southern States, where the conditions were practically similar to those existing in this state; that he examined and once thought of adopting as the advisory rate in Mississippi the Deans schedule, used in Arkansas, but that this was different from the rates previously used in Mississippi, and because it would be difficult for the agents to understand this rate he discarded same. He examined the rates of the Louisiana Fire Prevention Bureau, an organization under the control of the state of Louisiana. He also examined the rates in use by the Southeastern Tariff Association. The testimony in effect shows that the Louisiana rates under the control of that state were the same as the rates of the Southeastern Tariff Association. Mr. Weille said he did not think it was a good idea to try to revolutionize insurance rates in the state of Mississippi, and that, after considering all of the different rates of these different states, his company, after a conference of its stockholders and directors, concluded that the rate of the Southeastern Tariff Association as promulgated by it in 1908 was a proper basis rate to be used in Mississippi; that in arriving at this conclusion they did not confer or *458consult with any of the insurance companies doing business in the state of Mississippi, but that this was the deliberate result of the independent judgment of the stockholders of the Mississippi Bureau; that they thought these rates were proper and reasonable rates both for the insured and the insurer in the state of Mississippi. Acting upon this conclusion, this bureau sent to Atlanta, Ga., its then secretary, Mr. Taylor, to procure one thousand copies of this basis rate book of the Southeastern Tariff Association. The facts relating to the securing of these books as testified to by the secretary of the Southeastern Tariff Association are uncontradicted, either by direct or circumstantial testimony. He testified that Mr. Taylor came to him and asked him to sell to this Mississippi Bureau 1,000 copies of this book. He declined to do so, giving as his reason therefor that the Southeastern Tariff Association had withdrawn from the state of Mississippi in 1900, and had not since this either directly or indirectly operated in the state of Mississippi, or in any wise attempted to interfere with the rates of insurance in this state. Mr. Taylor then went to the Lester Book & Stationery Company, a printing company organized and doing business in Atlanta, Ga. This company had printed the book of the Southeastern Tariff Association. This book, was however, uncopyrighted, and no instructions by this association had been given to this printing concern not to print other copies or to sell them to other parties. This concern is a corporation of the state of Georgia, a separate and distinct entity from the tariff association. Its only connection with the tariff association was to print for it this book. Upon the completion of that work its relationship with that association ceased. Taylor made a contract with this book company to print and ship to the rating bureau at Vicksburg, Miss., one thousand copies of this book. This was done. When this book reached the Vicksburg bureau it had printed therein: '
*459“Any agent who shall write, place or canse 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 the said property for one year thereafter.”
This section was cut out of the Mississippi Inspection & Advisory Rating Company’s book. Also there was stamped on the first page of the book the following:
“This book is the property of the Mississippi Inspection & Advisory Rating Co., of Vicksburg, Miss., 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. Mississippi Inspection & Advisory Rating Co., Vicksburg, Mississippi.”
These books were then sent by the Mississippi Bureau to the home offices of the insurance companies, and also copies were sent to the local agents over the state for their use.
It is the contention of the appellee that this conduct was in effect the re-entry of the Southeastern Tariff Association into the state of Mississippi, and that these rates adopted by the rating bureau as advisory rates, having been previously agreed upon to be used and maintained by the Southeastern Tariff Association in the states wherein it operated, was a blunging back into the state of Mississippi of the agreement to use and maintain these rates within this state.
It is the agreement to fix and maintain rates which is prohibited by our anti-trust law. It was this agreement that was condemned by this court in the Insurance case in 75 Miss. 24, 22 So. 99. It is this agreement which is condemned in the case of Miller v. Insurance Co., 126 Miss. 301, 88 So. 711. By reference to the decisions of the supreme court of the United States, as well as to other de*460cisions of this court, it will he readily seen that it is the agreement that is always condemned. The agreement between the state through the attorney-general and the insurance companies was to withdraw the agreement to fix and maintain insurance rates in the state of Mississippi from Mississippi. In other words, it is. not the rate itself that violates the anti-trust law, but it is the agreement to fix and maintain the rate which violates the law. The rate itself may be reasonable or unreasonable, but, in the absence of an agreement, however unreasonable it may be, it does not violate the láw. Consequently the only thing violative of the law was the agreement of the Southeastern Tariff Association, and the day after that agreement with the attorney-general was entered into each Insurance company, though they were members of this Association, had a perfect right, acting independently, without an agreement, to instruct its agents to continue to use the rates of the Southeastern Tariff Association as the rate of that company. The use of this rate in the absence of any agreement does not, and could not, in any way violate the anti-trust law of this state. This fact was expressly. decided by this court in the Miller case, supra, in which decision all of the members of this court concurred. This decision is neither modified nor overruled by the three members of this court who are voting to affirm the case at bar upon the question of liability. In fact, since it takes four members of this court to either overrule or modify a decision, the decision in the Miller case, supra, stands unmodified as the law in Mississippi today. This opinion explicitly holds that, in the absence of any agreement, any insurance company has a right to adopt any rate of insurance it pleas.es in the state of Mississippi as its rate. It further holds that each and every insurance company holding business in the state of Mississippi, acting independently, without any agreement with any other insurance company or with the rating bureau, can adopt as the rate to be charged for insurance in Mississippi the rates promulgated by the rating bureau. It is always the *461agreement that is condemned, and never the rate of insurance. Consequently these rates of insurance were not outlawed in Mississippi, and the Mississippi Bureau, acting independently, and using its own judgment, aside from any agreement with any insurance company, had a perfect right to adopt as its basis rate within the state of Mississippi these rates of the Southeastern Tariff Association, or any other basis rate wherever found in the United States, provided it did so without making any agreement with any insurance company so to do. There is no testimony, either direct or circumstantial, to contradict the fact testified to by Weille, who by the way was put upon the stand, and was'a witness for the appellee. Being appellee’s witness, his veracity is necessarily vouched for by the state of Mississippi, and the state at no time expressed any surprise at his testimony, or asked to contradict or impeach it in any manner. Neither is it contradicted by any direct or circumstantial testimony in the case as to why and how and the manner in which these rates were adopted by this bureau. This company was under no contract with the insurance companies to furnish them with a basis rate. Its only contract was to furnish them with specific rates, and this it had already done. It is further shown by the uncontradicted testimony in the case that the 1908 basis rate book of the Southeastern Underwriters’ Association was gotten out by this association .for use only in the four states in which it operated. Mississippi was not one of those states.
Neither can there be anything in the contention of the appellee that, because none of the agents or officers of this rating bureau was competent to originate in the first instance a basis rate, this fact shows that the bureau was but a sham and a fraud, and the agent of the Southeastern Tariff Association. The direct testimony in the case, which is uncontradicted, shows that the basis rates for fire insurance companies are merely the results of the experiences for years of all of the companies. Entering into *462- this rate is the fire loss, the fire hazard, to which is added the cost of doing business and a reasonable profit. That the data from which a rate is made from time to time shows that a change is necessary in the rate. Sometimes the fire losses for a period of years upon certain classes of business will-show that the rate for this class has been too low. Therefore the result will be a raising of this particular rate. Conversely, the fire losses of another class will have been So small that the rate should be lowered. The basis rate over the entire country is based upon the experiences of the companies practically from the time they began doing business. It would therefore be impossible for any man or set of men to originate at this time a basis rate. The only proper way to arrive at a basis rate, as shown by the uncontradicted testimony in the case, is to take the .experiences of the companies relating to the fire losses of all classes of insurable property, considered with the average cost of doing business and allowing a reasonable profit to the companies. It is shown that every basis rate referred to in this case, either made by an association of the insurance companies or where this rate is under the supervision of a state, is arrived at in this way. These facts were ascertained by the Mississippi Bureau when it began business. Mr. Weille, the president of this bureau, testified that, after -an examination of the basis rates of the various states whose conditions were similar to those of Mississippi, his company concluded that the basis rate as shown by the 1908 rate book of the Southeastern Underwriters’ Association was a proper and reasonable basis rate book for conditions existing in Mississippi. The secretary of the Southeastern Underwriters’ Association and other witnesses testified about basis rates. This testimony in effect shows that these basis rates are compiled from records, data, and experience contained in old basis rate books, to which is added, of course, the experience obtained from data between the compilation of the last book and to the time of the getting out of the new bbok. In other *463words, these basis rates are based on experience, and were changed from time to time as conditions demanded.
The record does not show that the officers of the rating company were not competent to adopt a proper basis rate for the state of Mississippi. On the other hand, it shows that they were very careful in making an examination of the different rates, and exercised their own judgment as to what was a proper basis rate for this state. And, so far as this record shows, they were thoroughly competent to decide this question, and it is not intimated or contended that their decision was not a correct and a wise one. The testimony shows that Weille was an experienced insurance man, that his secretary Taylor, was an experienced engineer, who had previously been in the employ of the Southeastern Tariff Association, and was thoroughly competent and efficient to inspect and classify the various risks of insurance in the state of Mississippi. The same may also be said of Robertson, who became the secretary of the rating company upon the death of Taylor. The uncontradicted testimony shows all this. It may be true that the rating company could not originate basis rates. By its charter it was not expected to originate basis rates, but merely to recommend advisory rates in Mississippi. The uncontradicted testimony shows that' the agents and officers of the Mississippi company were competent and capable and efficiently exercised the charter powers granted them by the state.
However, if they were incompetent or inefficient, these companies could not be convicted in this case because of these reasons. The rating company is not a party defendant to this suit. It is not shown to- be the agent or a mere branch of the Southeastern Underwriters’ Association, but is shown to be a Mississippi corporation. Consequently, if its work was improperly or inefficiently done, this fact would not alone warrant the penalizing of these defendants. Before these defendants can be penalized in this case the testimony must show that the Mississippi Rating *464Bureau was the mere agent of the Southeastern Underwriters’ Association to enforce within the state of Mississippi the rates of this association previously agreed upon to be enforced and maintained in Mississippi by this association acting for the Southeastern Underwriters’ Association in Atlanta, Ga., and this is the real contention of the appellee in this case.
The appellee further contends that the Mississippi Bureau should not have advised a specific rate or a basis rate which contained anything except the data relating to the fire hazard; that necessarily the cost of doing business and a reasonable profit to each company is different, and for this reason the advisory rate of this bureau should- not have contained any part of a rate based on the cost of doing business and a profit'.
The charter of the rating bureau authorizes it to sell advisory rates. This necessarily means a completed rate into which enters every element necessary to make the whole. In making a rate there is included therein the average cost of doing business, plus a reasonable profit, and this data is obtained from this experience for a number of years. In other words, it is but an average gathered from the experience, just as the fire hazard is. However, a complete answer to this contention is that the rating bureau had a perfect right under its charter to sell as advisory rates what it thought was a proper rate to charge for insurance, which means a complete rate. I find, however, from an examination of other basis rates and specific rates, that they are completed rates, including the cost of doing business together with a reasonable profit, as well as the fire hazard, just as the rates sold by the Mississippi Bureau were. In fact, so far as we know, every rating bureau in the United States gets out complete rates, just as the Mississippi Bureau does.
The appellee contends that, since the insurance companies did not furnish their local agents with any other rates except those promulgated by the rating company, and *465since it is necessary for an agent to have some rates to go by, this is an evidence of an agreement, among the Fire Insurance Companies to adopt and maintain the rates of this bureau, or as evidence that the bureau was but the agent of the tariff association to enforce previously agreed upon rates.
I have already discussed the conditions existing after "the withdrawal of the tariff association from the state. The insurance companies, after being informed by the attorney-general that they had a legal right to subscribe to the rates of the Mississippi Bureau, and use them in the absence of an agreement, received these rates at their home offices, as well as knew that they were put in the hands of their agents. Necessarily they had a perfect right, in the absence of an agreement among themselves, or with the rating company, to leave it with their agents in the first instance to use these rates in writing policies. These policies were then sent to the home offices, where they were examined, and, if the companies thought the rate reasonable, the insurance was allowed to remain in force. If for any reason they thought the rate unreasonable, or did not like that character of insurance, they would have the- policies canceled so far as the testimony shows, each company acted independently in passing upon each policy of insurance written by its local agent, either accepting or rejecting it as it saw fit without any understanding or agreement of any character whatever with any other company or with the rating bureau. Any company acting independently had the right, if it so desired, to use as its rate of insurance in Mississippi the advisory rate recommended by the Mississippi Rating Bureau. Every company doing business in the state of Mississippi, acting independently, upon its own initiative, in the absence of any agreement or understanding with any other company, or with the rating company, had the right to adopt as its rate of insurance in Mississippi the advisory rate as promulgated by the rating bureau of Mississippi. In this *466event there would he no agreement or understanding, and, as stated before, the statute only condemns the agreement or understanding. Miller v. Insurance Co., supra, discusses and expressly decides this point.
The establishment of a rating and inspection bureau in a state naturally tends to a uniform rate of insurance. The companies who subscribe for these advisory rates necessarily do so because they believe that the rates are reasonable and proper, and based on accurate data and information. If they did not believe this, they would not subscribe for them. The work of a rating bureau relieves the insurance companies either jointly or separately from gathering this information for themselves. The record in this case shows that the Mississippi Rating Company at great expense specifically rated every city and town within the state, making maps thereof, and showing the true condition of all of the insurable property within these municipalities. In addition thereto it has advised and recommended proper construction of buildings, both public and private, in order to prevent fire waste, reduce this fire danger, thereby lessening the price of insurance, and lessening the dangers from fires. This service it performs gratuitously to .the people of the state. This is done both for the benefit of the property owners and the insurance companies. The insurance companies had a perfect right to furnish no other rate than this advisory rate to their agents, and no- inference except that of legality in the conduct of their business can be drawn from this fact.
The appellee insists that the amendments adopted from time to time by the Mississippi Bureau were practically all amendments previously adopted by the Southeastern Tariff Association, and that this fact is an evidence that the rating bureau is but an agent of the tariff association. These amendments are elaborately discussed in the briefs of counsel for appellee and appellants. It is impossible-to consider and compare these amendments in this opinion, though these comparisons have been made bv the *467writer. With reference to them I wish to state, first, that the nncontradicted testimony of Weille and Robertson shows that all amendments adopted by the rating burean were done so by them upon their own independent judgment, without any suggestion or dictation from any outside source; that they were adopted because they thought them proper on account of existing conditions. If this testimony is not contradicted by other direct or circumstantial testimony, it would not be an evidence of guilt in this case. The Mississippi Bureau has a perfect right, if in its judgment it is proper, to adopt any and every amendment promulgated by the Southeastern Tariff Association. During these fourteen years the Southeastern Tariff Association adopted three hundred fifty-two amendments; the Mississippi Bureau adopted one hundred sixty-five— not quite half. Some of these amendments are identical, some were similar, and some different. In some instances the Mississippi Bureau adopted an amendment before the Southeastern Tariff Association adopted a similar amendment. The testimony shows that it was-a custom of rating bureaus to exchange information for the benefit of the bureaus. In this case the testimony shows that the Mississippi Bureau received the information, amendments, and tariffs of other rating companies; that, in addition to this, it kept in touch with the conditions in Mississippi, and from insurance journals and other papers kept in touch with the general insurance business over the United States, and that it acted upon all of this combined information in the promulgation of its various amendments. Various amendments adopted by the Southeastern Tariff Association and by the Mississippi Bureau were adopted by various other bureaus of this character throughout the United States. In other words, these bureaus attempted to keep in touch with the times, and amended their rates and schedules as conditions warranted. The fact that the Mississippi Bureau sometimes adopted an amendment before the tariff association did so$ and also the fact that it had *468different amendments in some instances from the tariff association, and also had similar amendments in some instances, and in some instances identical amendments, tends rather to show that it was acting upon its independent judgment, instead of merely following the dictation of the tariff association. The testimony as to why these amendments were adopted, and that they were adopted upon the judgment alone of the Mississippi Bureau, is voluminous and uncontradicted, and the similarity and identity of some of these amendments in no wise controverts this direct testimony.
Certain local agents of the insurance companies testified on behalf of the appellants. It was agreed that other local agents in the state would testify to the same effect. I believe it is stated that this testimony will be equivalent to either that of six hundred or eight hundred local agents within the state of Mississippi. The testimony of these agents is to the effect that there was no agreement among them to write insurance according to the advisory rates of the Mississippi Bureau; that in most instances each agent in writing insurance wrote it at the rate advised by the bureau because he thought the rate was proper and reasonable. I might go a step further, and say that, in addition to this fact,, these agents may have thought that their companies would be more apt to accept business if written in accordance with this advisory rate. They all testified, however, that they considered the rate as advisory only, and not as obligatory upon them. Though there were variations from the rate of the Mississippi Bureau, I shall assume that in ninety-five out of every one hundred policies this rate was followed. The agents further testified that they knew of no agreement among the companies to maintain these rates. Many policies written below the advisory rate were accepted and remained in force during their life. Sometimes policies written below the advisory rate were returned to the agents; the company so returning the policy would instruct the agent, in *469effect, that the policy was not written at the advisory rate, and that the company believed the advisory rate was proper, and to write the policy at that rate. The testimony shows that the policies when written were sent directly to the home office of the company issuing the policy. There was no central bureau either within or without the state where all insurance policies were sent and checked to see that a uniform rate was followed. None of the general or special agents of one company had a right to inspect the books of any other company in the office of the local agents. The testimony of the officers of the different insurance companies showed no agreements or understandings whatsoever on their parts to fix or maintain rates in this state; that each company had its own particular way of examining, accepting, or rejecting policies written in Mississippi, that they absolutely acted upon their own independent judgment in doing this, without regard to any other company. In short, there was no concert of action whatsoever among local agents or among insurance companies about writing, examining, accepting, or rejecting the policies. There is ¿o direct testimony to contradict these facts. There is no circumstantial testimony that tends in any wise to contradict these facts.
There is certain testimony contained in the record which counsel for appellee contends contradicts this direct testimony which we will now briefly analyze:
Mr. Becker, local agent for some of the different companies, testified that he followed the advisory rates of the Mississippi Bureau because he considered them fair and correct; that he was perfectly free to cut the rate if he desired to do so. He did not consider it good business policy to cut the rate as advised by the bureau. He knew of other companies writing below the advisory rate. He did not report them to any agent of his companies. He lost several policies in this way. In one case he knows as a fact that he lost a policy. He said nothing about it. The man was a friend of his, and he knew that if he made him *470pay a higher rate he would "have it in for” him. He made no report of it; consequently what might or might not have been done was merely the expression of opinion. Of course he did not know and could not say what would have been done about the policy. This tends to prove nothing.
Another agent, Mr. Bourgeois, testified that he never reported any other agent for writing below the advisory rate. He was once reported by some competitor for writing below this rate, but on examination it was found he had written by the rate. The competitor reported him to the company that lost the business, and he supposes his company was informed of the fact by the other company. Upon objection the witness stated he did not report it, and the matter was dropped. Another instance of what he supposed was done. As a matter of fact he did not know whether the matter was reported to his company by any other company or how his company found it out — all hearsay testimony, which proves nothing. Right here it might be remarked that the suit was for penalties for fourteen years, and the various incidents enumerated and to be enumerated cover this period.
Roberts and other local agents testified in effect that they used' these rates of the Mississippi Bureau as advisory; that they wrote below them when they desired. Ordinarily they followed the suggestions of the bureau. No company instructed them to do so. That when he (Roberts) knew of another agent writing below this advisory rate he would occasionally take up with the company that lost the business. He does not state that his company ever did anything about it. It is perfectly consistent to assume that agents in explaining to their companies why they had lost business would give as a reason a lower rate written by some other agent. There can be nothing inconsistent with the theory of the proper transaction of this business in the state to be drawn from such testimony.
*471Miss Benthal never reported a competitor for cutting a rate. On one occasion she complained to the rating bureau about it, and was informed by it that it had nothing to do with enforcing rates, and was not interested in the matter.
Smith never had any instructions from his companies what to do when he found competitors writing below the advisory rate. He sometimes complained to his companies about agents getting business from him by writing below this rate. Sometimes the rate would be raised to the advisory rate, sometimes he did not know what happened. Gf course he did not know, and there is no testimony to show, that the company losing the business made any complaint to the company getting the business. There is no testimony to show whether the company that would subsequently raise the rate did it or not of its own independent will. Therefore, applying the rule that the transaction was legal and proper, it is to be assumed, in the absence of any testimony to the contrary, that, where a rate was raised to the advisory rate, this was done by the company acting independently in the absence of an agreement with any other company.
Another incident mentioned is the insuring of the Clarke county courthouse. The president of the board of supervisors was told by an insurance agent that there was no necessity to advertise for bids, as there would be no competition in the price for the insurance. Advertisements were made, different bids were submitted, and the lowest bid accepted, at which time an unsuccessful bidder, a local agent, stated that the policies would be cancelled. The policies were canceled. The local agent who was the successful bidder, however, got the insurance written in another company. The board was requested not to say anything about the premiums paid on this policy. The dissatisfied agent who lost the insurance testified that he did not make any report of this matter to any one. I do not therefore know why the first policies written were can*472celed. It must be presumed that the company or companies in which they were written acted according to the law, and, using their own judgment, without any agreement, declined this risk. In fact we do not even know whether this policy or policies were written by any of these defendants. This testimony is entirely too vague, and is absolutely of no probative value whatever.
Mr. O’Brien, of the Jackson Lumber Company, insured his plant with the local agency of Nugent & Pullen, obtaining from them a rate below the advisory rate. Some time thereafter Mr. Nugent informed him that he would have to cancel these policies and write at the rate advised by the Mississippi Bureau, because pressure had been brought to bear upon the companies to do so. Mr. Nugent is dead, and we have not the benefit of his testimony. His partner testified that he knew nothing about any pressure being brought to bear on his companies. The record is silent as to who brought to bear this pressure, whether it was brought to bear on these companies collectively or individually, whether it was brought to bear on them by other insurance companies, or by their stockholders, or by some other corporations or individual. The record is silent' as to what the pressure was. This testimony is entirely too vague, general, and indefinite to show anything. We must presume, in the absence of testimony to the contrary, that these companies were not violating the law of Mississippi; that this pressure was not brought to bear upon them by other insurance companies by virtue of any unlawful agreement to fix or maintain rates within the state of Mississippi. Another instance of testimony with no probative Aveight whatever. This testimony, however, was admissible. No primd-facie case to fix or maintain these rates was ever made out at any stage of the case. Consequently, at no point in the stage of the proceedings were the admissions of any coconspirator evidence against the other alleged conspirators.
*473Mr. Sivley wrote insurance from 1906 to 1914. He considered that the advisory rates were obligatory upon him. He was never told of any agreement of the companies to use or maintain these rates. He might have been individually instructed by some of these companies to follow these rates. To the same effect is the testimony of Mr. Galloway. We have elsewhere stated that, in the absence of an agreement, these companies had a right to adopt these rates as their own in' Mississippi. The thing to be proven is the agreement; not the uniform use of the rate.
Practically all of the fire insurance written in the city of Jackson was written according to the advisory rate of the bureau. Mr. Nelson, a local agent, ascertained that the bureau was going to recommend a higher rate in Jackson on certain classes of property; also that the bureau at'some future period would recommend that Jackson be rated as a first-class instead of a second-class city, which would reduce the rates of insurance within the city. He and other agents requested the bureau not to advise a raise in rates until Jackson was put in the first class. This was a very commendable act upon the part of Mr. Nelson and other insurance agents. These agents were also following the advisory rate. They had no agreement to do so, but thought these rates were proper and reasonable. These policies were being accepted by their companies. The testimony showed no agreement on the part of the agents, and the chancellor so held. Neither does this testimony show any agreement upon the part of the companies or the agents. It in no way controverts the direct testimony of Mr. Nelson that the agents had no agreement, and that he used the rates as advisory, and knew of no agreement among the companies.
Mr. Stone, an insurer, was informed by his local agent that he had to write his policy in accordance with the advisory rate. I therefore assume that this agent’s company without any agreement with any other company had independently adopted this rate of the bureau as its rate. It *474had a right to do so, and I must assume that its act in doing so was legal in the absence of testimony to show its illegality.
The same applies to the testimony of Wilkerson, Savage, Brough, Ryals, Harris, and other testimony which merely tends to show a uniformity of rates.
Another incident referred to is the adoption of the amendment about insurance on cotton. In Texas insurance rates are made and governed through state officials. In the year 1915 there had been lots of cotton throughout the cotton belt destroyed by fire. The Insurance Commissioner of Texas called a meeting of the rating bureaus throughout the cotton territory for the purpose of discussing conditions and trying to devise means by which the fire hazards on compresses and warehouses in which cotton was stored could be reduced. Various officials of the rating bureaus of the Cotton States attended this meeting, among whom was Mr. Robertson, the secretary of the Mississippi Bureau. At this meeting a schedule of rates was gotten out, which was considered reasonable by those attending the convention. Mr. Robertson, the secretary of the Mississippi Bureau, did not agree at the meeting that he would put this rate into effect in Mississippi. He returned from the meeting, made an inspection of the compresses and warehouses in the state, and tested out the reasonableness and the applicability of the schedules suggested at the Galveston, Tex., meeting, and, after deciding that it was a reasonable and proper schedule, the rating bureau promulgated an advisory rate to this effect. This amendment was gotten out upon the independent judgment of the rating bureau without any agreement or understanding whatever that, it would do so, and only gotten out after it had been tested out in the state, and after the bureau was satisfied that it was applicable to conditions in Mississippi. Instead of being any evidence of any agreement with any one to promulgate this rate, the uncontradicted testimony shows that it was gotten out upon the independent judgment of the rating company.
*475The appellee further insists that the testimony shows that the insurance companies, after being sued by agreement withdrew from the state of Mississippi, and this should be considered as an evidence of previous unlawful agreements to fix' and maintain rates in the state of Mississippi. The record shows that not only were these companies sued for large penalties for a period of fourteen years, each day being by the statute denominated a separate offense for which a fine was imposed, but all of the assets of these companies within the state of Mississippi were attached, and receivers were appointed to collect and take charge of these assets. So far as their funds in Mississippi were concerned, they had none upon which to continue business. If they were violating the law a continuance of business would each day have been considered a separate offense. The companies under their policies could have canceled all existing policies in force within the state. This was not done. The testimony of each company shows that, after a lawyer was sent to Mississippi to investigate the situation, and after his report was made to the companies," each company, some probably upon the same date and others upon different dates, acting separately and individually, concluded not to write any new business within the state of Mississippi. They testified that there was no agreement among them to withdraw from the state. With all their funds within the state in the hands Of a receiver, and the possibility of future penalties for violation of the law being assessed against them for continuing in business within the state, we do not see how they could have done otherwise than discontinue writing new business. Neither does the fact that they discontinued doing so contradict the direct testimony that each company decided for itself, without any agreement with the others to cease writing new business within the state. Their funds being in the hands of a receiver, they, of course, could not do business within the state upon those funds. Usually when a business is put in the hands of a receiver it ceases to be a going *476business so far as the owners of the business are concerned. It may or may not be operated by the receivers in accordance with the orders of the court. In view of this situation, it seems to me that prudence demanded of each company that it cease doing business in Mississippi, at least until the receivers were discharged and these funds restored to them.
When the ant.i-trust laws were enacted by the legislature, and when the amendment to them making these laws applicable to fire insurance companies was enacted, it is to be presumed that the legislature was cognizant of how the business of fire insurance was carried on in the state. It knew that these rates were made by agreement of these companies through the Southeastern Tariff Association, and that this agreement fixed and maintained these rates in Mississippi. It also knew that this insurance was written by local agents scattered all over the state: That a local agent represented not only one, but a number of different insurance companies. There is nothing in this law prohibiting an insurance agent from representing more than one company. In fact, it is necessary, in order for a local agent to continue business that he represent more than one company. This is due to several reasons. There a.re certain hazards or buildings that some companies will not insure. There are large mercantile and manufacturing establishments, all of whose insurance one company is not willing to write. Some insurance companies will only write a certain amount of insurance within certain limited territory — say within a business block. Consequently it frequently becomes necessary for a local agent in order to write the amount of insurance desired to place parts of this insurance in several different companies. It also frequently happens that the insurer will not give all of his insurance to one local agent, but will give a part to one local agent and a part to another local agent. This was the condition which existed when these laws were enacted.
*477Another thing, the business of insurance is not like the business of buying or selling personal property. The transaction is not completed when the insurance policy is written. The insured is vitally, necessarily, interested in the solvency of the company in which he is insured. ' This interest continues as long as the insurance policy is in force. For this reason we have elaborate laws providing for a supervision of these insurance companies, requiring certain things to be done by them in order that they may’ do business in the state. These laws in the main require that they satisfy the Insurance Commissioner that they are solvent and able to pay the losses incurred by them for the benefit of the insuring public. The insurance business is clothed with a public interest, and for this reason the supreme court of the United States has upheld the constitutionality of state statutes providing for state supervision and control of the insurance rates and the conditions upon which these companies could do business within the various states. Very many of the states have state rating bureaus, whose rates are obligatory and binding upon the insurance companies. While there is nothing in our law to prevent it, it would be unfair and unjust for an insurance company to charge one insured one rate on a piece of property and charge another a different rate on a separate piece of property where the fire hazard in both instances was identical. In this case the man paying the higher rate, as soon as he found it out, would naturally demand that his property be written at the same rate given his neighbor. If there were no rating bureau in the state of Mississippi, a fair and honest insurance agent would naturally for every company which he represented fix the rate of insurance the ’same on every identical hazard. If his competitor who represents a number of other companies were writing at a higher rate on this hazard, as soon as his customer found out this fact he would naturally demand of him this lower rate written by his competitor. Where several policies of insurance are written *478upon a large building by several different local agents, naturally the rates for these policies would be the same. Otherwise the insurer would place all of his insurance with the companies offering the lowest rate. The natural tendency of all of this necessarily would lead to a uniform rate, at least in each locality. Through their various associations merchants and others who are insured would naturally obtain knowledge of the various rates obtaining in the localities, and the localities finding that they were being charged a higher rate on the same hazard under similar conditions would naturally insist upon the lower rate of the other locality. This would probably tend to uniformity of rates throughout the state. In other words, the manner of conducting the insurance business through local agents representing several insurance companies, in the absence of rating boards, in the course of time naturally tends to a uniform rate brought about by competition. The period covered by this suit (fourteen years) in the absence of a rating board might have shown a uniformity of rates thus brought about by competition.
These anti-trust laws only prohibit an agreement or understanding to fix or maintain rates. Naturally they do not prohibit a uniformity of rates, and a uniformity of rates is not violative of this'statute unless it results from an agreement or understanding.
Aside from the testimony in the case, what is the natural result of the use by insurance companies of the advisory rates promulgated by the Mississippi Bureau? The companies subscribing for these rates naturally expected to get' something for their money. They expected to get an advisory rate that was a reasonable and just rate. They naturally expected that, if, in their opinion, the rates were reasonable and just, they would allow their local agents to write insurance at these rates. The testimony shows that these companies, or most of them, checked these policies by these advisory rates, and, if written in accordance with the rate, generally accepted the business. In some *479instances, however, they did not, because they considered the rate on that particular risk too low, and therefore undesirable. The use of these advisory rates in this way— that is to say, in the absence of any agreement or understanding among themselves or with the rating company as to them — is perfectly legal. Each company had a perfect right to do this. This custom necessarily tends to, and would within a short time, bring about a practical uniformity of rates. This uniformity thus brought about is the natural result of perfectly legal acts, and is brought about in a perfectly legitimate way. We think the testimony in this case uncontradictedly shows that this is exactly what happened in this case. Such is the uncontradicted testimony of all of the officers of the insurance companies and of all of the local agents. There is no direct testimony to contradict any of these facts. There is no act or series of acts, there is no incident or series of incidents, proven in this case which in any wise inferentially contradict this direct testimony. It is to be remembered that, if two reasonable inferences might be drawn from the testimony, the one that the act is legal and- the other that the act is illegal, the court must, as a matter of law, adopt that theory which comports with honesty and fair dealing and legality. In other words, the court must find as a matter of law that the act was legal. Every man is presumed to be honest until the contrary be proven. Every act of a man, and even every act of a corporation, is presumed to be legal until the contrary be shown. While I do not think that any inference of guilt or of illegality may have been justly drawn from this testimony I am sure that the legality of these acts was directly proven, and, as I view it, no other finding can be made in this case.
This suit covers a period of fourteen years. There are within this time perhaps eight or ten particular transactions alluded to as tending to show a system of maintaining these rates. I have attempted to analyze briefly these various incidents. Each one in itself was lawful. Since *480each is lawful, each inference to he drawn therefrom must necessarily be that of legality. You cannot from one hundred lawful acts draw an unlawful inference.
The defendants in this case are insurance companies. The Mississippi Rating Bureau is not a party defendant. Throughout this trial, however, the rating bureau has really been on trial. It is contended that it was a mere subterfuge, a sham, and a fraud, and but the agent of the Southeastern Tariff Association, through which its agreement to enforce and maintain rates in Mississippi was enforced. That these rates were agreed upon beforehand at the headquarters of this association, and then sent to the rating bureau with orders to be promulgated in Mississippi. I think I have demonstrated that the rating bureau was an independent corporation; that it in good faith exercises the powers granted it under its charter. Much was made of the claim that this bureau could not in the first instance evolve or originate a basis rate of insurance. The testimony does not show that this bureau could not have done this if it had so desired. Its first secretary, Mr. Taylor, was shown to be an efficient man, who had had experience in the rate-making department of the Southeastern Tariff Association. There is no testimony to show that he and Mr. Weille, who was a practical insurance man, could not have taken the experience of the insurance companies as shown by their various data and worked out a different basis rate for Mississippi. However, if it be a fact that this could not have been done by these men, could they not have employed whatever experts they wanted to do this work if they had thought it necessary? The important thing, however, is that under their charter they are not required to originate any specific or basis rate. All they had to do was to advise a rate. They could have, if they had thought best, originated a rate of their own. They had a right, however, to examine and accept the rate of any other rating bureau that they thought reasonable for conditions in Mississippi. Louisiana has a state rate-*481making bureau. Yet the state of Louisiana through its officials adopted for use in that state this identical rate of the Southeastern Tariff Association. This if it shows anything, would indicate that Louisiana thought that a reasonable rate to be charged in that state. ■
The explanation of Mr. Weille, the witness for appellee, and for Avhose credibility and veracity the appellee vouches, fully explained the circumstances surrounding the adoption of the basis rate book of the Southeastern Tariff Association as a basis rate book for Mississippi. I-Ie did not think it would- be well to try to revolutionize the system of rate malting in the state. He examined the basis rates of various states, some under state supervision and others not, and after a full discussion with his stockholders, they concluded that the basis rates of the Southeastern Tariff Association were reasonable and proper for use in Mississippi, after buying these books from the Lester Company, an independent company, Avhich was in no vvay the agent' of the Southeastern Tariff Association, and in no way connected with it, it having been employed to print these books* for the Southeastern Tariff Association in the first instance, Avhich it did, and after which its connection ceased Avith the association. When these books were shipped to the Mississippi Rating Bureau, that part relating to an agreement was cut out of them. In all of its communications with the insurance companies and Avith the local agents the Mississippi Rating Bureau Avas careful always to let it be known that these rates Avere advisory. In no instance did the rating bureau ever arrogate itself to do more than promulgate adAdsory rates. The operations of this bureau were shown to have been open and above board. For a long Avhile it filed AArith the Insurance Commissioner all rates and data of every character promulgated by it. This Avas done until the Insurance Commissioner informed it to quit doing so — in effect, that he did not have room in his office to store all of the information gotten out by the bureau. The testimony in *482the case, in my opinion, shows that the rating bureau in good faith legally complied with the powers granted it under its charter, and that there is no testimony whatever tending to contradict then testimony of Weille and others that it was not the agent of the Southeastern Tariff Association or of the insurance companies in any way.
From the decree of the chancellor I infer that'he held the companies guiltless from January, 1908, to June 15, 1908. I also infer from the testimony that during this period these companies were using the specific rates gotten out by the Mississippi Rating Bureau, and that the chancellor held that the use of these specific rates only was not a violation of the law, but that they became guilty when they began to use the basis schedule rates sent out by the Mississippi Bureau. When these companies received these basis rates they necessarily knew by an examination of them that they were the same rates used by the Southeastern Tariff Association. This independent knowledge of each company could not constitute a violation of the law. They further knew, of course, that the Southeastern Tariff Association rates were not made for Mississippi, and that they had no agreement to use and maintain these rates within the state of Mississippi. The mere carrying of the book into the state'of Mississippi and the adoption of it by the Mississippi Rating Bureau, as I have before stated, did not carry into the state of Mississippi an agreement made in another state to enforce rates in states other than Mississippi. Nothing was carried into Mississippi except the basis rate book, and this was sent out with instructions to all agents and insurance companies that it was merely advisory. The insurance companies therefore knew from this that the Mississippi Bureau thought a reasonable rate for Mississippi, which it advised, was the same rate enforced by the Southeastern Tariff Association in the states in which it operated. Nothing more. There was nothing, clandestine in the way the Mississippi Bureau operated. There was nothing clandestine in the way these defendants *483conducted their business in the state of Mississippi. They complied’ with the law, filing information required of them with the Insurance Commissioner, paid the taxes required of them, and otherwise obeyed the laws of the state of Mississippi in order that they could do business here. Their business has been conducted openly during all of this time, and now, at the end of fourteen years, they are convicted of having violated the law during all of this time. Before they subscribed to the rates of the Mississippi Bureau they also had before them a letter of the chief law officer of the state of Mississippi, telling them that they could subscribe for these rates and use them, provided they had no agreement either among themselves or with the rating company to enforce them. The attorney-general of the state of Mississippi gave the Insurance Commissioner a correct interpretation of the anti-trust law, and from all of the testimony in the case, as I view it, the conclusion is inescapable that no illegal agreement has been proven. Neither is there any testimony in the record which intimates that the advisory rates of the Mississippi Bureau were not reasonable and just. The reasonableness of the rates would not prevent an agreement to enforce them from being a violation of the law. In the absence of any proof of an agreement, however, the reasonableness of the rates would indicate the good faith of the rating company in complying with its charter.
In my opinion there is no conflict whatever in the testimony with reference to the material or controlling facts in the case. There is merely a diversity of opinion as to what those facts mean. The facts are undisputed. Does the inference of guilt preponderate over that of innocence? While I believe that the finding of the chancellor is against the overwhelming weight of the testimony, and that there are no facts upon which this finding can be sustained, vet the application of this rule to the finding of facts by a chancellor can have little or no weight in a case of this character because this court should be as capable of drawing inferences from undisputed facts as the chancellor.
*484Among other cases the appellee relies ppon that of Caroll v. Insurance Co., 199 U. S. 401, 29 Sup. Ct. 66, 50 L. Ed. 246. The question before the court in that case was the constitutionality of a law of the state of Kansas giving the Insurance Commissioner authority over rates. The court held the act constitutional. There was no question before the court of how an agreement to enforce could be proven. Among other things the court used this language:
, “No doubt an agreement between the companies readily would be inferred, if they were found all to charge the same rates.”
This question was not before the court for decision. This language is dictum. In the case before us the testimony is not silent as to why there was a uniformity in rates, the reason being that the insurance companies, acting individually, thought the rates of the rating bureau just and reasonable. Even if an agreement could be inferred from the uniformity of rates, this, inference is completely dissipated in this case by the direct testimony.
In the later case of Frey & Son v. Cudahy Packing Co., 256 U. S. 208, 41 Sup. Ct. 451, 65 L. Ed. 892, this charge was given to the jury in the trial .of the case:
“I can only say to you that if you shall find that the defendant indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and you find defendant called this particular feature of this plan to their attention on very many different occasions, and you find the great majority of them not only expressing no dissent from such plan, but actually co-operating in carrying it out by themselves selling at the prices named, you may reasonably find from such fact that there was an agreement or combination forbidden by the Sherman AntiTrust Act.”
It will be noted that the court in effect instructed the jury that, if the defendant indicated a sales plan which was uniformly- followed, the jury could reasonably find *485from that fact an agreement. The court held that this charge was erroneous, and that from those facts alone an. agreement could not be inferred. This was the point in issue in that case, and in my judgment announces the correct rule, which is really in conflict with the dictum above referred to, and which also is in accord with the decision of the court in the Miller case, 126 Miss. 301, 88 So. 711.
The case of Hartford Insurance Co. v. Raymond, 70 Mich. 485, 38 N. W. 474, is also cited by appellee as authority to sustain his contention. In that case it will be noted that the insurance company and the rating company expressly agreed that the insurance companies were to adopt and maintain the rates as promulgated' by the rating company. This, of course, was an agreement with the rating company to allow it to fix rates of insurance in the state, and was violative of the statute. Such an agreement would also be violative of the Mississippi statute.
Another case relied upon by the appellee is that of State ex inf. Crow v. Insurance Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. From an examination of that case, however, it is readily seen that the local agents at St. Joseph, Mo., entered into an agreement which is set out in detail for the maintenance and enforcement of the rates of insurance. This, of course, would also be violative of the Mississippi statute, and no such agreement among local agents was shown in this case. In fact the chancellor expressly found that there was no agreement among local agents. In fact, after a careful consideration of all of the testimony in the case, I find no testimony except that as .to a uniformity of rates. Why this uniformity existed is amply shown by the testimony, and that it resulted from perfectly legal action. This case is therefore, in my opinion, controlled by the decision of this court in the case of Miller v. Insurance Co., 126 Miss. 301, 88 So. 711, and, in my opinion, with greatest deference to the learned chancellor who decided otherwise, I unhesitatingly say that no inference of guilt or illegality could have been drawn from the tes*486timony in this case, and that a judgment should be entered in this court in favor of the defendants.
I do hot think that the state should be denied a recovery in this case because of laches.
“Laches is neglect to do what should have been done for an unreasonable and unexplained length of time under circumstances permitting diligence; mere lapse of time before bringing suit without change of circumstances will not constitute laches; . . . but it must appear that by reason of the delay some change has occurred in the condition or relations of the property [or of the claim sought to be enforced] which would make it inequitable to enforce the claim.” 2 Bouvier’s Law Dictionary, 1820 (3d Rev.); Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307; 1 Pomeroy’s Equitable Remedies, section 21.
In the language of Stiness, J., in Chase v. Chase, 20 R. I. 202, 37 Atl. 804, quoted in Comans v. Tapley, supra:
“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 steps 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.”
The elements of laches, therefore, are: First, unreasonable delay in asserting a claim; second, negligence in not sooner asserting it; and, third, such a change in the condition of the party against whom the claim is sought to be asserted, brought about without fault on his part, as *487renders it inequitable to permit the assertion of the claim, all of which must concur before it can be invoked as a defense. The second of these elements is missing, as is probably the third also; but whether they are present or absent is immaterial, for laches cannot be invoked against the government, state or national, in a suit “brought by the government in its sovereign capacity to enforce or to protect a public or governmental right.” 21 C. J. section 216, p. 217. Or, as stated by Mr. Pomeroy in his Equitable Remedies, vol. 1, section 25, it cannot be invoked against the government “when it has a direct pecuniary interest in the subject of the litigation.” Josselyn v. Stone, 28 Miss. 753; U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121; U. S. v. Dalles Military Road Co., 140 U. S. 599, 11 Sup. Ct. 988, 35 L. Ed. 560; Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. For additional authorities, see 21 C. J. 217, note 94. The language in which this rule was announced in Josselyn v. Stone, supra, is:
“It is a universally recognized rule that no laches is to be imputed to the state and against her; that no time runs so as to bar her rights. This is a great principle of public policy, intended to secure the rights and property of the public against loss or injury by the negligence of public officers and agents.”
And in U. S. v. Beebe, supra:
“The principle that the United States are not . . . barred by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enforce a public right, or to assert a public interest, is established past all controversy or doubt.”
Cases wherein laches can be invoked as a defense against the government are those in which it “is a mere formal complainant in a suit, not for the purpose of asserting any public right, or protecting any public interest, title, or property, but merely to form a condxxit through which one private person can condxxct litigation against another private person” (1 Pomeroy’s Eqxxitable Remedies, section *48825), and in some jurisdictions in cases in which it-sues “for the enforcement or the protection of a private and proprietory right, rather than a public or governmental right” (21 C. J. 217). But three of our brethren say that laches may be here invoked as a defense to a part of the penalties sought to be recovered. If the defense of laches could be here invoked at all, it would necessarily bar the collection of any penalties, and not simply of a part thereof, for the change in the appellants’ condition on which the defense is based is the death of witnesses whose testimony, if they were living, would relate to the making of the agreement by the appellants upon the making of which the right of the state to collect any penalties at all depends. To hold that, because of delay in' the bringing of the suit, all penalties that were incurred by the appellants prior to two or six years before the bringing of the suit would violate both section 104 of the state Constitution and section 3096, Code of 1906 (Hemingway’s Code, section 2460), which provide that “statutes of limitation in-civil causes shall not run against the state,” and would in effect overrule Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, and Nugent v. Robertson, 126 Miss. 419, 88 So. 895, a branch of the case at bar, wherein it was expressly held that no statute of limitation can be invoked against the state to bar the collection by it of penalties for the violation of the anti-trust laws.
There is no principle of equity under which a claim for the penalties here sought to be recovered can be considered as “stale” and a limitation placed thereon analogous to that provided by statutes of limitation,, even if such a principle could be applied in a suit by the state, for, whatever the rule may be elsewhere, the rule in this state is that “a claim not barred by the statute of limitations is not a stale claim.” Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210; Westbrook v. Mounger, 61 Miss. 329; Houston v. Building & Lorn Ass’n, 80 Miss. 31, 31 So. 540, 92 Am. St. Rep. 565; Comans v. Tapley, supra.
*489In this connection it may not he amiss to say that the appellee would not be deprived of any substantial right which he here has by limiting him to the collection of the penalties which accrued within six or even two years prior to the beginning' of the suit, for the amount thereof which could and should be imposed within either of these limits, assuming that the appellants are guilty as charged, would more than consume the money belonging to them in the hands of the receivers, and. the appellants have withdrawn from the state leaving no other property belonging to them therein.
This brings me to the contention of counsel for the appellants that the aggregate of the penalties imposed on each of the appellants is so great as to violate the due process of law clauses of the state and federal Constitutions, and section 28 of the state Constitution which provides that excessive fines shall not be imposed. In determining this question the judgment against each appellant must be separately considered, for the penalties imposed on one of them can have no bearing in this connection on the penalties imposed on any other, and, when each judgment is so considered, it will appear that as to some of them no such question as is here presented can arise, for it cannot be seriously contended, for instance, that the judgment for one thousand three hundred fifty dollars rendered against one of the appellants is excessive.
The statutes which fix the amount of the penalties that can be imposed here are section 5004, Code of 1906, and chapter 222, Laws of 1910, approved on the 2d day of April, 1910 (Hemingway’s Code, section 3286), by which section 5004 was amended. The former provides that:
“Any person, corporation, partnership, firm, or association, or any representative or agent thereof, violating any of the provisions of this chapter, shall forfeit not less than two1 hundred dollars nor more than five thousand dollars for every such offense, and each day such person, corporation, partnership, or association shall continue to do so shall be a separate offense,” etc.
*490The latter reduces the minimum penalty to twenty dollars a day. Section 5004, Code of 1906, was held to he valid in Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, which holding it would seem would dispose of the question here under consideration, for the amount of the penalties imposed on each appellant is pot only within the limits of the statutes, hut is made up of the minimum penalties for the time that section 5004 was in effect, and of practically the minimum penalties for the time subsequent thereto. If the judgment rendered against any of the appellants violates the státe and Federal Constitutions because of the amount of the penalties therein imposed, then it may be that no judgment whatever can be rendered against that appellant, for the reason that the smallest judgment permitted by the statute would be void, and that appellant would escape punishment altogether, not because it is innocent, but because it has continued to violate the law for a great length of time.
If the appellants are guilty of the offense with which they are charged, and in determining the question here presented this court must proceed on the theory that the court below committed no error in holding that they are guilty, the penalties imposed are not excessive within the constitutional sense, for the agreement which the court below held they had made affected not a small area of territory, or a few individuals, but was state-wide — affected and was intended to control the entire fire insurance business of the state, and was deliberately made in flagrant violation of the state’s laws. That the power of control over the business of fire insurance which the agreement, if such was in fact made, vested in the appellants seems not to have been misused by them, and not to have resulted in material injury to the state, is material in this connection only in determining the amount of the penalties which within the terms of the statute should be imposed on them, and full weight thereto is given upon the penalties imposed, which are the smallest which the statute permits.
*491The legislature must be given the widest latitude in determining the punishment to be inflicted for the violation of a law enacted by it so as to accomplish the object and piirpose it thereby had in view, and — “In determining Avhether a fine authorized by statute is excessive in the constitutional sense, due regard must be had to the object designed to be accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and the nature of the act for Avhich it is imposed, and, in some instances, to the ability of defendant to pay. In order to justify the court in interfering and setting aside a judgment for a fine authorized by statute, the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is.right and proper under the circumstances.” 16 C. J., p. 1358.
Smith, C. J., and Anderson, J., concur in these views.Opinion on Suggestion of Error.
Smith, C. J.Except as it may be hereinafter set forth, each of us adheres to the views expressed by him when the decree herein appealed from Avas affirmed. As Avill appear from our former opinions, that decree should be reversed as to all of the appellants Avho were not members of the Southeastern Tariff Association; but in the enumeration of the appellants Avho were not members of this association we omitted the National Liberty Fire Insurance Company, so that in so far as that company is concerned the suggestion of error must be sustained, the decree reversed, and the cause as to it must be dismissed.
Counsel for the appellee in their reply to the suggestion of error say that we erred in reversing the decree as to the Union Insurance Company of Canton as that company was a member of the Southeastern Tariff Association. Con*492ceding for the sake of the argument that this is true, the error was invited by counsel for the appellee, for one p-f their original briefs contains a list of the companies they then admitted were not members of this association- — • one of which is the Union Insurance Company of Canton. But if the error was in fact committed, it is too late now to ask for its correction.1 That should have been done, under rule 14 of this court (72 So. viii), by a suggestion of error filed within fifteen days after our judgment was rendered. It may be we could treat the brief of counsel as a suggestion of error had it been filed within the required time, but it was not filed until more than thirty days after the judgment was rendered.
One of the contentions of counsel for the appellants is that the differences of opinion among us as to the existence r,el non of error in the decree appealed from requires that the decree should be reversed, either in toto, or as to- the amount of the penalties imposed by it.
Under the practice of this cóurt a judgment or decree may be affirmed in so far as it adjudges liability and reversed as to the amount of the recovery allowed thereby, and since we are equally divided on the question of liability, that portion of the decree must be affirmed. So that we come to the real question on this suggestion of error, which is whether or not the decree should be reversed in so far as it imposes penalties.
The statute imposing the penalties here sought to- be recovered for the alleged violation of our Anti-trust Law prior to April 2, 1910, was section 5004, Code of 1906, which provides that— “Any person, corporation, partnership, firm, or association, i or any representative or agent thereof, violating any of the provisions of this chapter, shall forfeit not less than two hundred dollars nor more than five thousand dollars for every such offense, and each day such person, corporation, partnership, or association shall continue to do so shall be a separate offense.”
This statute was amended by chapter 222, Laws of 1910, approved April 2, 1910, Hemingway’s Code, section 3286, *493by reducing the minimum penalty therein from two hundred dollars to twenty dollars per day.
The court below found that thirty-three of the appellants had been members of a trust and combine formed for the purpose of controlling the fire insurance business in Mississippi, from the loth day of June, 1908, and the other appellants from various dates subsequent thereto, to and including the 2d day of December, 1920, and imposed on each appellant a penalty of two hundred dollars for each day, excluding Sundays, of its membership therein, from June 15,1908, to the 2d day of August, 1910, and a penalty of twenty-five dollars for each day thereafter to and including the 2d day of December, 1920. The thirty-three appellants held to have been members of the trust and combine from June 15, 1908, were penalized therefor in the sum of one hundred ninety-five thousand eight hundred seventy-five dollars each; the aggregate of the penalties imposed on all of the appellants being eight million fifty-five thousand seventy-five dollars.
As will appear from our former opinions herein, Judges Anderson, Sykes, and Smith are of the opinion that the court below erred in imposing any penalties at all on the appellants. Judge Holden is of the opinion that it erred in imposing any penalties other than for the two years next preceding the 2d day of December, 1920. Judges Cooks and Ethridge are of the opinion that it erred in imposing any penalties other than for the six years next preceding the 2d day of December, 1920. In other words, the three judges first named are of the opinion that the appellee is not entitled on the evidence to recover any penalties at all from the appellants. Judge Holden is of the opinion that he is entitled to recover penalties for the two years next preceding the 2d day of December, 1920, and Judges Cook and Ethridge are of the opinion that he should be permitted to recover penalties for the six years next preceding the 2d day of December, 1920. The ground on which the opinions of Judges Anderson, Sykes, and *494Smith rest is that the evidence is not sufficient to support the finding of the court below that the appellants had violated the state’s Anti-Trust Laws, and the ground on which the opinions of Judges Cook, Ethridge, and Holden rest is that the state is barred by its laches from collecting the penalties except, according to Judge Holden, for two, and according to Judges Cook and Ethridge, for six years.
It thus appears that all of the judges of this court are of the opinion that the court below erred in imposing penalties on the appellants for each day prior to and including the 2d day of December, 19Í4; and that four, a majority thereof, are of the opinion that it erred in imposing penalties for each day prior to and including the 2d day of December, 1918. Consequently if the decree of the court below is to remain in force, the appellants will have to pay to the appellee several millions of dollars which every judge of this court has said they do not owe — a result so shocking to every sense of justice as to suggest that a judgment permitting it is without warrant in the law.
'The judgment to be rendered by an appellate' court is determined automatically by operation of law from the votes of its members on the question of error vel non in the various rulings in the trial court that have been assigned for error, and each judge thereof should vote to render it, although it may not be the judgment to which his views on any of the assignments of error would have led. Were the law otherwise, no judgment could ever be rendered when the judges are equally divided on the various assignments of error, for no judgment can be entered on the minutes of the court unless its entry is directed .by a majority of the judges thereof. This is the course uniformly pursued by the members of this court as evidenced by the per curiam memorandum filed herein when the decree now under consideration was affirmed. The duty which here devolves upon us, therefore, is simply to ascertain what judgment under the law should be ren*495dered because of the differences of opinion among us as to error vel non in the decree of the court below, and then to render that judgment.
The rule that must here govern was first clearly announced by this court, or rather by its predecessor, the high court of errors and appeals, in Browning v. State, 33 Miss. 47. The assignment of error on which the three judges then composing the court divided was that “the court erred in not sustaining the motion for a new tidal.” Tavo of the grounds upon which counsel for the appellant sought to sustain the assignment of errors, were:
First, “that the verdict finding the prisoner guilty was not sustained by the evidence; and, second, that the jury, during the four days of the trial, took their meals at the public table in the town of Lexington, and Avere . . . exposed on such occasions to improper influences.”
The court Avas then composed of Judges Handy, Fisher, and Smith ( Cotesaa^orth Pinckney). Judges Handy and Fisher Avere of the opinion that the evidence was sufficient to support the verdict, but Judge Smith was of the opinion that it Avas not sufficient therefor, and for that reason the motion for a new trial should have been sustained. Judges Handy and Smith were of the opinion that the jury had not been exposed to improper influences, but Judge Fisher Avas of the opinion that the jury had been so exposed and for. that reason the motion for a new trial should have been sustained. Two of the judges, Fisher and Smith, therefore concurred, but for different and unrelated reasons, in holding that the court below erred in overruling the motion for a new trial. In reversing the judgment the court held that in order for an appellate court to reverse the judgment of a trial court, a majority of its members must concur in holding that there is error in a ruling of the trial court, “which could, under proper rules of practice, be assigned as error,” in the appellate court, but that it is not necessary that this majority should concur in the reasons which led each of *496them to the conclusions that the assignment of error should be sustained. In other words, an assignment of error must be sustained if-a majority of the judges, concur in so holding, though each of them bases his decision on a ground different from that on which each of the others is based. Among the cases decided by this court pertinent hereto and illustrating .the rule announced in the Browning case, supra, are McNutt v. Lancaster, 9 Smedes & M. 570; Lipscomb v. State, 75 Miss. 559, 28 So. 210, 230; and Howie v. Brantley, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723. The last named of these cases was finally disposed of without reference to the question of practice here under consideration, and the opinion thereon was in effect, though not in fact, withdrawn, and while it would fully support the judgment we shall here render, we have reached the conclusion hereinafter announced without reference thereto, as we do not regard it as a precedent.
The question then for our determination is whether a majority of us concur 'in holding-that the court below erred in a specific ruling which can be here assigned for error. Since a majority of us concur in holding, though for different reasons, that the court below erred, in imposing penalties on the appellants for each day other than the two years next preceding and including the 2d day of December, 1920, the only real question for us to determine is whether or not the ruling of the court below necessarily made when rendering its- decree that the appellants are liable for penalties for each day of the time intervening between the 15th day of June, 1908, and the 2d day of December, 1918, can be here assigned for erro'r.
One of the usual assignments of error on appeal to this court from the chancery court is that the court below erred in rendering a (or the) decree against the appellant, and one of the assignments of error here is in this form. Under such assignment any ruling necessarily made when rendering the decree is usually reviewed without objection from the appellee; but under rule 6 of this court (72 So. *497vii) it may be that such an assignment is too general, but, if so, it can easily be made specific enough to cover the error here in .question, as hereinbefore set out, and the holdings of Judges Cook, Ethridge, and Holden are predicated upon the fact that each day of membership in a trust and combine is a separate offense for which á separate penalty is to be imposed. If the error in the judgment imposing penalties for membership in a trust and combine is that it imposes penalties for a day or days for which the appellant claims not to be liable therefor, that fact can be assigned for error, otherwise the court would be powerless to grant relief therefor, and if the assignment is sustained the judgment can be set aside and the error corrected either here or on a remand to the trial court. It is unnecessary for us to determine whether any of the various assignments of error here filed are pointed specifically at the error of the court below here under consideration, for the test of this court’s right to review a ruling of the trial court is not whether such ruling is, but whether it could have been, assigned for error. In rule 6 of its rules of practice this court expressly reserved the right to review a ruling of the, trial court not assigned for error.
It follows from the foregoing views that the decree of the court below should be reversed as to the amount of the penalties imposed by it.
The next question that arises is: Should final judgment be rendered here, or should the cause be remanded to the court below?
Counsel for both the appellants and the appellee say that under section 4919, Code of 1906, Hemingway’s Code, section 3195, final judgment should be rendered here, so that, without determining this question of practice, the decree of the court below will be set aside in so far as it imposes penalties, and a final judgment will be rendered here in accordance with this opinion imposing a penalty of $25, as did the court below, on each of the appellants, ex*498cept those hereinbefore ordered to be discharged, for each day, excluding Sundays, for the two years next preceding and including the 2d day of December, 1920.