#### IN THE MATTER OF A FILING MADE BY THE NORTH GASOLINA FIRE INSURANCE RATING BUREAU SEEKING A RECOMMENDED RULE AND ORDER.

(Filed 28 January, 1959.)

Appeal by Commissioner of Insurance and intervenors from Sharp, S. J., February Assigned Civil Term, 1958, of Wake.

North Carolina Fire Insurance Rating Bureau, created by G.S. 58-125, filed with the Commissioner of Insurance a proposed rule prescribing the method of handling the additional charge for insurance required by c. 1420, S. L. 1957, codified as G.S. 118-18 et seq. The proposed rule would require the statutory additional charge to be shown as an addition to and separate from the premiums. The Commissioner thereupon gave notice of a public hearing as required by G.S. 58-27.2. The North Carolina Association of Insurance Agents, Inc. and the North Carolina Association of Mutual Insurance Agents opposed the proposed rule. A hearing was had. The Commissioner rejected the proposed rule, holding the insurance companies were authorized to increase the pate and thereby increase the premium to meet *467the mandate of the statute. The Rating Bureau sought a judicial review of the Commissioner's ruling as permitted by G.S. 58-9.3. The record was certified to the Superior Court of Wake. The associations of insurance agents were permitted to intervene. Judge Sharp held that the Commissioner erred in concluding and holding that the statute required the increased charges to be passed to the insured by an increase in rate rather than by an addition to the premium. Judgment was entered vacating the Commissioner’s order and remanding the cause for further consideration. The Commissioner and the associations appealed.

Attorney General Seawell and Staff Attorney Pullen, for Commissioner of Insurance.

Fletcher & Lake for North Carolina Association of Insurance Agents, Inc. and North Carolina Association of Mutual Insurance Agents.

Joyner and Howison and James H. Pou Bailey for North Carolina Fire Insurance Rating Burea.

PeR CuRiam.

We have held the requirements of c. 1429, S. L. 1957, imposing an additional charge on the purchasers of insurance from some but not all insurance companies, are prohibited by constitutional restrictions. Assurance Co. v. Gold, ante, page 461. Since the charge cannot be legally collected, no rule with respect thereto is required. There is no subsisting controversy. The appeal is

Dismissed.

WinboRNE, C.J., took no part in the consideration or decision of this case.