(dissenting).
In the third syllabus to the original opinion the rule was laid down by all the judges agreeing thereto as follows:
“Before a judgment or decree of a trial court can be reversed by a supreme court, a majority of the judges thereof participating in the decision must concur in holding that a specific ruling of the trial court on which the judgment or decree is based is erroneous.”
This to my mind is an absolutely correct statement of the proper rule, and the anomalous and, as I think, mischievous rule now announced, that on a suggestion of error a judgment will be reversed where a majority of the court does not concur on any common reason for reversal, must inevitably lead to mischief and will hereafter embarrass the court very greatly, as I shall point out more in detail, in this opinion.
Before dealing with this question further, I desire to make some statement with reference to my reasons for voting to affirm on the question of liability. I had hoped that we would be able to say conscientiously that the evidence did not support the charge made because of the great interests affected in the state by the suit, and because I always feel gratified -when we can say from a record that a charge against a person or a corporation charging wrongdoing is not supported by the evidence. I have no desire, and never had any desire, however, to see either party to a suit win unless his contention was supported by the evidence, and when this cause came up for hearing before us I gave very studious and thoughtful attention to the record and to the points of law involved. I searched the record, searched the books, and searched my conscience in the case, and after the most thoughtful consideration of the questions involved, I reached the conclusion that there *499was enough evidence to warrant the chancellor’s finding of fact in the case under the rulings of law governing us in deciding such questions. Dillard v. Wright, 11 Smedes & M. 455; Kelly v. Miller, 39 Miss. 17; Davis v. Richardson, 45 Miss. 499, 7 Am. Rep. 732; Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Lee v. Wilkinson, 105 Miss. 358, 62 So. 275; Evans v. Sharbrough, 106 Miss. 687, 64 So. 406; Humbler v. Humbler, 109 Miss. 216, 68 So. 161; Bank of Lauderdale et al. v. Cole et al., 111 Miss. 39, 71 So. 260; Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321.
On the suggestion of error it is urged with earnestness that we have misconceived the evidence and that the evidence does not Avarrant a judgment against the appellants on liability. Ip vieAV of the fact that three members of this court entertained that view on the original hearing and still entertain it, I re-examined my position and reconsidered the case from every angle to see, in my own mind, if I was mistaken in the original opinion. My reflections have confirmed my former opinion, and it is rather strengthened than weakened by a re-examination of the arguments made, together Avith the views advanced by Judges Anderson, Sykes, and Smith in their dissenting opinion on this proposition. I think my Brethren are unconsciously influenced by the conviction that they would, if deciding it, as an original proposition, have reached a contrary conclusion from Avhat the chancellor reached, and that they have not given weight to. certain facts in the record that are entitled to Aveight in reviewing the decision of the chancellor. As the record contains thirty-five volumes of stenographic notes, Avith many exhibits, it would be impossible to set out in the space of an opinion all of the facts which appear in the record and which are entitled to some consideration.
The arguments of the appellants proceed upon the idea that the state’s case rested entirely on circumstantial evidence and that the denials of the officer of the companies *500who testified in the case of any agreement or any understanding or combination among the several companies involved, whatever force these circumstances may have had standing alone, are dispelled by this positive evidence, and the opinion of the three dissenting judges in the original opinion proceeds along the same idea.
The case does not stand wholly upon circumstantial evidence, and, if it did, the mere denial of the conclusions established by the circumstances and denied by the individuals involved would not necessarily and as a matter of law prevent a finding in accordance with the deductions to be drawn from the circumstances.
There are numerous admissions in the record, made by numerous different agents of the different companies, to the effect that the Mississippi Rating Bureau fixed the rates, and that the general agents of the' companies had nothing to do therewith and had no power to change them. It is true this admission is denied by the chief officers of the several companies, and it is also denied by a number of agents. Nevertheless, the admission of the agent, made within the scope of his authority, and about the business of his principal, is the admission of the principal himself, and is to be considered as evidence just as though the company itself had made the admission. There is much testimony in the record that when this Rating Bureau made a rate, it was practically unanimously followed; the proof showing that it was followed in ninety-five per cent, of the business written by the companies. The proof also shows that a part of the variation from the fixed rate was caused by fixing the rate in such figures and fractions of figures that it was not easy to discover the variation. That the companies would assume that there was some reason in the. physical situation or location of the property that justified the departure from the book rate. The proof further shows that the Mississippi Rating Bureau was authorized by its charter granted by the state, in section 2 thereof, as follows:
*501“The purposes for which said corporation is formed are as follows: To inspect risks, classify and promulgate advisory rates of insurance, both fire and marine, and to suggest a proper means of construction and maintenance and protection to buildings so as to prevent as far as possible waste from fires, and to reduce the price of insurance on same for the benefit of all parties interested; and for said purposes shall be authorized to print and sell in printed form the rates and suggestions so made and to otherwise charge reasonable fees for its services.”
Notwithstanding it was incorporated for these purposes and had power to sell this information, that as a matter of fact it only charged fees for its services to the companies and not to the property owners, notwithstanding the proof shows that its engineers made surveys of many business houses and institutions, and, in some instances, spent several days in such work, using' skilled engineers, that it made no charge to the property owner, but that its sole compensation for any and all services was one per cent, of the gross premiums received by the companies on the risks written in the state. In other words, the services rendered were rendered the property owner and, if followed, resulted in diminishing the rate of insurance to the property owner; yet the property owner, the beneficiary, was not charged for these services, but a charge for the service was made to and paid by the several companies. It would be unnatural for a person or corporation acting as a disinterested arbiter or functionary between the insurer and the insured to charge the party who did not receivé the service the fees earned by the service rendered.
It is further shown in proof that the Rating Bureau as a matter of fact did not make insurance rates, though its charter, which is its contract with the state, empowered and authorized it to do so, and that was the chief purpose of the state in approving its charter. Under its charter it had the power and it was its duty to have competent persons to make rates upon a proper, scientific, and expert *502basis. Instead of doing that, it bodily took the Southeastern Tariff Association rates, or the Southeastern Underwriters rates (the name being different at the different periods of time, but being the same institutions), and brought these rates into Mississippi and issued them as though these rates had been prepared by its own officers and employees.
We find further that the' appellants who have been held liable under the judgment had entered an agreement as to the rates involved in the territory known as the Southeastern Tariff Association territory, and that they had solemnly agreed not only to use those rates uniformly, but to punish and discipline their agents if they failed to adhere to these rates or varied from them. Each company which was a member of that Southeastern Tariff Association had a copy of its book of rates in its home office, and many of them in the hands of their agents in this state. They bought from the Mississippi Bureau and agreed to pay for these same rates one per cent, of their gross premiums in Mississippi. It certainly does not stand to reason that a company would pay one per cent, of its gross income for a book which it already had and any number of copies of which could be secured for a mere nominal consideration. It is unbelievable that a company would buy a book of rates for use in this state without comparing it to the book of rates which it had in use in the adjoining states to this, and without comparing it with their own data collected by whatever rate-making agency it had. If it did compare it, it was bound to know that it was the same rate which it already had, and if it was under no obligation to use the rate, but could promulgate its own rates, why would it not use the rates it already had in its office?
The proof further shows that there were numerous cancellations because of variances from the rates, and taking all things together it was logical at least to assume that the agreement made in the Southeastern States was brought into Mississippi in disguise, and that the Mississippi Rating *503Bureau was a mere agency of the companies whose rates it was using in Mississippi.
In reading the evidence in this case in so far as conclusions were to be drawn from circumstantial evidence, we followed the rule announced in Banks v. Banks, 118 Miss. 783, 79 So. 841, which is as follows:
“Where an offense of this kind is sought to be proven by circumstantial evidence, the circumstances must be proven with reasonable certainty, and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven, the proof will be insufficient because, to invest mere circumstances with the force of 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.”
This rule, however, when the party proves the necessary circumstances to support his conclusion, does not have to yield to the mere statement of the adverse party that the facts sought to be proved are not true. Where a party produces facts necessary of themselves to prove his conclusion, and these facts are disputed by the adverse party, or where the adverse party swears that the conclusion sought to be proven is not true — in this case that there was no argument or understanding — then a question of fact arises for the trier of facts to decide.
The decision proceeded also in harmony and accord with the case of Miller v. Insurance Co., 126 Miss. 301, 88 So. 711, by which decision the law is established upholding the legality of the scheme contemplated in the charter granted under the laws of this state to the Mississippi Rating Bureau and in accordance with the opinion of the attorney-general advising the Insurance Commissioner that it would not violate the law for the Mississippi Rating Bureau to advise, publish, and sell a rate or rates of insurance in this state, so long as there was' no agree*504ment, expressed, or implied, between the companies that such rates would be binding or obligatory or adhered to by the several companies. The liability was not imposed out of disregard for this decision, but the rule announced in the decision was borne in mind and adhered to in reaching a conclusion on the facts in this case.
It is not necessary for me to say or intimate what opinion I would have arrived at had I been the original trier of fact. I think the chancellor could have decided the cases either way, depending upon his view of the credibility of the witnesses, and I am not prepared to say that we would have reversed him on some of the cases in which he discharged the defendants had he held them guilty. It seems to me that it was a case where necessarily the chancellor had to decide some of the issues of fact and that some of the evidence was contradictory of other parts of the evidence. The chancellor had most of, the witnesses before him. His opportunities for judging of their credibility were much greater than ours, for we have nothing but the printed page containing the words of the witnesses without the advantage of their demeanor, appearance, and a thousand and one things that in the course of a trial may shed light upon the probabilities of a case.
If I could yield my own opinion conscientiously and without stultification and loss of my self-respect, I would rather see the case disposed of by releasing the companies, if necessary, from any liability, rather than see the doctrine established in this court that a majority may reverse a judgment though each judge voting to reverse stands with the minority on each particular question involved in the case. This view is so fraught with mischief and with future embarrassment to the court that I have felt called upon to express my opposition to it in as vigorous a fashion as I can without exceeding the limits of proper discussion. •
The majority opinion does not state my position with clearness in the present opinion. It states that—
*505“Judges Cook 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 the former per curiam opinion my position was stated as follows:
“Judges Cook, Ethridge, and Holden are of the opinion that the state can be charged with laches, and should be charged therewith here to the extent that the appellee should not be permitted to collect penalties for the full, period, of time that the court below found the companies had been doing business under the. agreements alleged in the bill of complaint; Judges Cook and Ethridge being of the opinion that he should be permitted to collect penalties for the last six years,” etc.
—which was a correct and accurate statement of my position.
The court in the first opinion held that laches could not be applied to the state and the majority of the court has not taken the position now that it can be. I feel bound by the decision unless at least one other judge would join Judges Cook, Holden, and myself in holding that the doctrine of laches is applicable. The doctrine of laches is a thing apart from the judgment. The chancellor held that the companies violated the law throughout the number-of years involved in the judgment and imposed penalties for each day, or at least a sufficient penalty to cover each day during that period, and that judgment was affirmed by this court, and no judge has changed his position with reference to the rightfulness of the legal questions then involved. Four judges do not now concur on any specific legal question involved in reversal. The judges who believe there was no liability have based their vote in the present cast upon that ground, although the court had solemnly decided that there was liability, and that decision has not been overruled, but stands. That being *506true, the judgment cannot be limited to penalties occurring within two years of the filing of the suit, because there are no statutes of limitation applicable, and laches 'is the only basis which could legally Avar rant the court in cutting down the judgment to that extent. Disguise it as Ave may, the effect of the decision is that although the court has declared the laiv to be that there is liability throughout the thirteen years, and has declared that the doctrine of laches is not available, yet three judges vote contrary to that part of the judgment and decision Avhieh held there ivas liability, and one judge votes contrary to that part of the decision which held that laches is not available in a suit against the state, or where the state is a party. The judges are not controlled by the laAV as thus announced in their voting, but adhere to the opinion Avhieh the court condemned in the former egse and it stands unreversed.
If the entering of the judgment may be assigned for error and every separate and distinct reason which could be urged against the legality of the judgment can be voted separately by each judge for the purpose of procuring a reversal, it may easily follow that a trial judge Avould be reversed even though on every single specific proposition relied on for error five judges might agree that he was right and only one judge agree that he Avas wrong. Suppose there Avere six instructions assigned for error, each of Avhieh, if Avell taken, Avould reverse the judgment. On No. 1 I Avould vote to reverse, Ave Avill say, and the other five judges vote to affirm. On No. 2 Judge Cook' Avould vote to reverse and the other five judges vote to affirm. On No. 3 Judge Sykes would vote to reverse and the other five judges vote to affirm. On No. 4 Judge Anderson would vote to reverse and the other five judges vote to affirm. On'No. 5 Judge Holden Avould, vote to reverse and the other five judges vote to affirm. On No. 6 Judge Smith aatou1c1 vote to reverse and the other five judges vote to affirm. And on a general vote as to Avhether the judgment should be reversed all should vote unanimously for *507reversal — we would have the anomalous situation of a chancellor being reversed though five out of six judges agreed he ivas right on every single proposition put up to him. With due deference that is not the action of the court, but is the act of each judge placing himself without the pale of the law and voting arbitrarily his views, enforcing a reversal on the basis of adding minorities when the majority of' the court thinks the judgment ought to be affirmed on each specific proposition. As said by one of the distinguished counsel in this case on a suggestion of error in the Brantley case:
“It is in this court and not in the judges who compose it that this great and solemn power rests. The court speaks and acts through the majority of its members. The voice of that majority is the voice of the state. A dissenting judge no more speaks with authority than would the marshal or janitor giving expression to his opinion. It is the organized entity — the court — which exercises judicial power, and that power is an entity and not divisible. . .
“Each judge must determine for himself what course to pursue. There is no power which can constrain him. Because the power is final and not subject to control admonishes to prudence and restraint in its exercise.
“The number of judges in the minority upon each of the questions involved added together constitute a majority of the court. They are ranked together because, and because only, each stands in opposition on some point to the majority of the court. Each may be of opinion that opinion which his associates may all think to be erroneous, but in order to carry into effect his own dissenting option which his associates may all think to be erroneous, joins with them in obstructing and- preventing the declaration by the court of its opinion as entertained by the majority of each question decided.
“As a mere matter of plain common sense, aside from the learning of the books, does it not seem that any rule which prevents the declaration by decision of the con*508elusion reached by the majority of the court on each of the questions involved, and which gives effect only to the view of the minority cannot be sound;”
If a minority can unite and by sheer personal force enter a judgment not sactioned by the law previously declared, what certainty can there be in courts or legal proceedings? A judge may rightfully challenge any decision of the court which he thinks unsound in the conference room and urge his fellows to join with him in overruling it, but unless it is overruled it ought to be binding upon him and ought to control his vote. To refuse to vote in accordance with the law as previously announced by the court, when the court will not overrule its decision, is nothing more nor less than the judge placing himself in rebellion against the law. Judges are selected for the purpose of enforcing and declaring the law as it exists, with the right, whenever the coui't as a court decides that a decision is wrong and mischievous, to overrule it and declare that to be the law which a majority of the judges decide is the law, but they have no right to disregard the law. A judge of this court is one of the highest judicial officers of the state, at the head of one of the great departments of the state, and, above all men, ought to conform to and obey the law.
If a majority of the court would agree upon a common ground of reversal of the former opinion I would be satisfied. In other words I feel like the other members of the court are as desitous of reaching a correct result as I am, and that they are capable of doing so. I would simply satisfy myself by saying that I thought the correct period to apply laches would be the six-year period because that period has been fixed to govern all cases not otherwise provided for under the general statute of limitation, and also because the statute has limited the revenue • agent to six years in collecting back taxes, indicating with reasonable certainty that six years is the most reasonable period in which to draw the line.
I cannot conceive of how we can properly travel under the rule that minorities may unite and control the ma*509jorities, or that the judges of this court can refuse to follow the law announced in its decisions when they are unable to overrule them. -Quoting again from the brief On the suggestion of error in the Brantley casé:
“When we think of a supreme court, its members exercising the judicial power of the state, our conception is of a body gravely and with anxious diligence seeking to discover truth and to administer justice according to settled principles.
“It is the thoughtful investigation, the calm deliberation, the cheerful and full subordination of private opinion to settled principles which is the very essence of the administration of law by such tribunal. Whether the particular point under investigation is ruled by prior decision, or is then for the first time ruled by the court, it is nevertheless 'the law. As such in the very nature of things it binds with equal power the judges who constitute the effective majority of the court, and those who, in minority, may be of the opinion that the law in that particular is not properly ruled. If the minority is not bound, it is because they are above the law; or being within its lawful influence have the will and power to sit and maintain themselves in opposition.
“This court does not make the law by its decisions; it only decides what the law is and has been. Decision in the very nature of things must precede its promulgation. The thought and its expression must agree, or the one is false. Utter confusion must arise if the thought of the court is sought to be expressed so as to give expression and effect to the views of certain of its members, which are not only opposed .to the opinion of the court as an entity ■ — an ideal corporate body — but are in direct conflict with each other.”
I will not undertake in this opinion to review the numerous opinions in other states, some of them decided one way and some the other, but the greater number and the best-reasoned opinions hold that a majority of the judges *510must agree on a common ground or a common legal reason before reversing a case. See Legal Tender cases, 52 Pa. 9; Grogan v. Wisconsin Sugar Co., 156 Wis. 406, 146 N. W. 491; Harland v. Wisconsin Sugar Co., 156 Wis. 407, 146 N. W. 492; and the masterly dissenting opinion of Justice Handy in Browning v. State, 33 Miss. at page 88, which reasoning has been commended in other courts, and also in this state in Lipscomb v. State, 75 Miss, 559, 23 So. 210, 230, though the court in that case agreed on one instruction as being the ground for error and did not therefore have to decide between Judges Handy and Fisher.
In Robertson v. Mississippi Valley Co., 120 Miss. 159, 81 So. 799, this court announced that, where a judgment was affirmed by this court by an equally divided court, the principle of law established by the affirmance would be followed thereafter as law unless and until overruled, and that such a decision is a judicial precedent.
In such cases it must necessarily be so, because where this court is equally divided the trial court constitutes the arbitrating judge and his decision stands, and inasmuch as it would be a lamentable thing to have one case decided one way where the judges are divided upon the question, and another case arising from the court of a different judge to be decided a different way, it would create endless confusion, and it was to obviate this and to have the law settled that the rule in Robertson v. Mississippi Valley Co., supra, was established.
Cook, J., concurs in this dissent.