Facts.

This is an action for injunctive relief. Plaintiff, Maurice J. Reese, is a licensed insurance agent, engaged in the business of selling insurance, including policies for hospitalization coverage issued by commercial insurance companies. Defendant, Associated Hospital Service, commonly known as Blue Cross, is a hospital service corporation, organized and operating under the provisions of sec. 182.032, Stats. Other named defendants are nonproprietary corporate hospitals that have contracted with Blue Cross for the provision of hospital services to Blue Cross subscribers. Such contracts provide that Blue Cross shall monthly remit to the hospitals payment of hospital bills for services rendered in a percentage to be fixed by the directors of Blue Cross. The complaint alleges that, since 1940, under such contracts, Blue Cross has had a three percent discount on hospital bills paid, a discount not given to commercial insurance companies. The complaint alleges such discount to be an unreasonable restraint of trade in violation of sec. 133.01. Defendants demurred to the complaint alleging that it did not state a cause of action. The trial court sustained the demurrer and denied plaintiff the right to plead over. Plaintiff appeals.

ROBERT W. HANSEN, J.

The plaintiff insurance agent contends that the three percent discount secured by Blue Cross under its contracts with the hospitals is, as to uninsured patients or those who have coverage under contracts with commercial insurance companies, an unreasonable restraint of trade, statutorily prohibited in Wisconsin.

Three statutes are here involved:

(1) The hospital service corporations statute, under which Blue Cross is organized and operates;

(2) The trusts and monopolies statute, declaring illegal contracts or combinations in the nature of a trust or conspiracy in restraint of trade;

(3) The insurance business methods chapter, prohibiting unfair methods of competition in the business of insurance.

Hospital service corporations

Two types of contract are necessarily involved in the operation of a hospital service corporation in this state under sec. 182.032, Stats. One is with its subscribers. Here Blue Cross enters into contracts with its subscribers, either on an individual or group basis, whereby such subscribers pay fixed fees in installments assuring them that all or the major part of their expenses for hospital services will be paid by Blue Cross. Blue Cross agrees to pay such charges. The second type of contract involved is between Blue Cross and contracting hospitals. Blue Cross agrees to pay certain charges and the hospital agrees to provide hospital services to Blue Cross subscribers, subject to the provisions and limitations of the contract between Blue Cross and the subscribers. Sec. 182.032 clearly authorizes Blue Cross to contract with hospitals for the providing of hospital services to Blue Cross subscribers. In fact, it requires them to do so before entering into any contracts with subscribers.

It follows that Blue Cross, in contracting with the codefendant hospitals for services to its subscribers, including the provision that makes possible the three percent discount to Blue Cross on bills submitted by the hospitals, was acting within and pursuant to the provisions of sec. 182.032, Stats. Antitrust law

The contention that any discount secured by Blue Cross through its contracts with hospitals restrains trade is that: (1) Uninsured patients and those who have their health insurance with commercial companies must pay hospital rates adjusted or inflated to make up for the three percent discount granted Blue Cross; (2) alternatively, to the extent the Blue Cross discount is not charged off to other users of hospital services, the deficit must be made up from public or charitable contributions; and (3) because of the three percent discount it enjoys, Blue Cross is able to reduce premiums to its subscribers, thus diverting premium payers from commercial companies to Blue Cross.

While holding that the mere granting of a discount to Blue Cross by participating hospitals did not constitute any restraint on trade, the trial court added that, assuming it would be a restraint of trade, sec. 182.032(1), Stats., "supersedes" any contrary policy expressed in sec. 133.01. This is using a meat cleaver to carve out a broad area of near-complete exemption from antitrust provisions where a scalpel can more effectively be used to permit a hospital service corporation to do exactly what the legislature has authorized, in fact required, it to do.

Sec. 133.01, Stats., has been held by this court to be a reenactment of the first two sections of the federal Sherman Antitrust Act, with application to intrastate as distinguished from interstate transactions, with its construction to be ruled by federal decisions construing the federal statute. The "rule of reason" test as adopted by the federal courts in applying the Sherman Act has been accepted by this court as applicable to sec. 133.01. It follows that a contract must constitute an unreasonable restraint of trade to be violative of sec. 133.01. It is enough here to hold that a contract between Blue Cross and certain hospitals whereby Blue Cross receives a three percent discount is not an unreasonable restraint of trade, if it is a restraint on trade at all. It cannot be held to be unreasonable for a hospital service corporation to enter contracts which are specifically authorized by sec. 182.032 and which clearly fulfill the stated purpose of such statute. So long as Blue Cross stays within sec. 182.032, legislatively authorized acts and activities must be held to meet the "rule of reason" test and not to be illegal.

If it is complained that this places hospital service corporations in a special category, the answer is that the legislature has seen fit so to do, and has spelled out its reasons for so doing. The legislative grant of tax-exempt status to nonprofit hospital service corporations puts them in a position of competitive advantage as compared to commercial corporations providing hospitalization insurance policies. Should it be claimed and established that such tax-exempt status was a restraint on trade, the conferring of such competitive advantage by the legislature makes it a not unreasonable restraint.

The trial court drew an analogy between the legal status of Blue Cross and that of cooperatives. As to exemption from certain taxes and in other regards, the analogy is apt enough. Such cooperatives have not been held to be in toto exempt from the provisions of sec. 133.01, Stats.; however, as to acts or activities clearly within their statutory authority, even a resultant restraint on trade is not to be held to be illegal. Even in a situation where the legislature had expressly exempted a certain organization from the reach of sec. 133.01, such exemption was held to relate only to acts of such organization in furtherance of its legislatively stated purpose. Having held that the contract provision providing for a discount between Blue Cross and the participating hospitals comes within the stated' purpose and express provisions of sec. 182.032, it follows that it is not to be held an unreasonable restraint of trade under sec. 133.01. Insurance regulations

Additionally, when the legislature placed nonprofit insurance corporations under insurance department controls, it brought them under ch. 207, Stats., relating to "unfair methods of competition and unfair or deceptive acts or practices." A number of specific practices are statutorily defined to be "unfair methods of competition." Also, when the insurance commissioner has reason to believe that an insurance company or hospital service corporation is engaged in any practice, not specifically named, but which is unfair to competition or deceptive in character, he may enforce the penalty provisions of ch. 207. The power to investigate is granted the commissioner, and the procedure for enforcement is spelled out. For violation of the specific "unfair to competition" practices prohibited by the statute, tile commissioner has the power to issue cease and desist orders, with a right to subsequent judicial review. As to asserted violations of the general provisions as to unspecified practices, the commissioner is to petition the courts for the restraining of such practice. The test in proceedings under ch. 207 is not whether a particular practice constitutes an unreasonable restraint upon trade. It is whether or not such practice is "an unfair method of competition or an unfair or deceptive act." The legislature has given the insurance commissioner authority to review and control trade practices in the hospital insurance and hospital service corporation field. If he were to be derelict in his duty in this regard, the remedy would be by appropriate writ to require him to act. Where an act or practice is within the purposes and provisions of sec. 182.032, review or challenge of it come not in a sec. 133.01 lawsuit, but in a ch. 207 proceeding.

The judgment of the trial court sustaining the demurrer of the defendants and denying leave to plead over must be affirmed.

By the Court. — Judgment affirmed.