should bear the same name, or the same name as that of some domestic corporation, whose certificate of incorporation may have been previously filed in your office.

It certainly cannot be a matter of any difficulty to determine whether or not the name of a proposed corporation whose certificate of incorporation is tendered to you for filing, is identical with that adopted by a corporation whose certificate of incorporation has been previously filed in your office, and yet, strange as it may seem, the question as to whether or not two names are identical,' where there is a change of a single word in the name, has been submitted to this office for oral opinion, by your various clerks and employees, and those of your predecessor, on an average of at least once each four weeks, for two and onehalf years past. It is unnecessary to add that the opinions expressed by this office, upon the above question, have always been the same. I am very glad, therefore, to have the opportunity of furnishing you with a written opinion upon this question, in order that the same may, as you suggest, be kept on file in your office, for your guidance and that of your several subordinates, as well as those of your successors in office.

It seems clear to me that where there is a change of a single word, the two names are not the same or are not identical. For twenty-two years, and ever since this territory became a state, your office has received and filed certificates of incorporation of hundreds of incorporations where there has been a difference of but a single word in the name. All of the principal railroads in this state have, at some time during their existence, reorganized and reincorporated by changing their name from "railroad” to “railway," or vice versa; there being no other change in the name, and their certificates of incorporation have been received and filed in your office. Permit me to suggest, therefore, that a change in that behalf, by executive ruling, at this late day might be ill advised.

The nisi prius courts in this state have frequently non-suited the plaintiffs or quashed the summons where the complaints were brought against a "railroad" company and the summons was served upon the officers of a "railway" company, or vice versa. Such rulings, therefore, are authority for the proposition that in such cases the names are not the

same.

Under the letter of the statute you are forbidden to receive or file certificates of incorporation for two corporations bearing the same name, and it can make no possible difference that the corporate existence of one corporation appears to have expired by limitation of time. The name still remains as a permanent part of the records of your office. Under our existing statutes, such a corporation may have a right to extend its corporate existence, and in addition to this, there is no way in which you can be officially advised that the affairs of the corporation, the term of whose existence appears to have expired by limitation of time, have been settled up, and that said corporation has ceased to exist for all purposes.

The following section of the statutes of this state, after providing the manner in which domestic corporations may change their name, contains the following proviso:

"That in changing the name of any corporation, under the provisions hereof, no name shall be assumed or adopted by any corporation similar to, or liable to be mistaken for, the name of any other corporation, organized under the laws of this State, or of the laws of the territory of Colorado, *

1 M. A. S., section 625.

Under the above section, you are, in my judg ment, vested with an official discretion to determine whether or not the name assumed or adopted is similar to, or liable to be mistaken for, the name of any other existing domestic corporation.

1 Thompson on Corporations, sections 298

and 299.

The State vs. McGrath, 92 Mo., 355, 358.

This discretion, however, can only be exercised, under the statute, in the case of a change of the name of a domestic corporation.

The "Special Adviser's Contract," is a contract with an agent of the Company for the performance of services. It is separate and distinct from any contract of insurance issued by the Company, and is not, upon its face, a special insurance contract. It is an instrument which may be used in such manner as to violate section 2232 of Mills' Annotated Statutes.

State of Colorado, Attorney General's Office. Denver, Colorado, July 17, 1899.

Dear Sir-I have the honor to acknowledge the receipt of your official communication of recent date, with enclosures, in which you advise me that complaint has been made to your department that The State Life Insurance Company, a mutual life insurance company, organized under and by virtue of the laws of the State of Indiana, is violating the statutes

of this state (special reference being made to 1 Mills' Annotated Statutes, section 2232), in the issuance of a certain "Special Adviser's Contract," and I quote from your communication as follows:

"It is contended that the issuance of these contracts gives to certain members (policy holders) of the company privileges not accorded to all, and therefore, destroys the mutuality of the company.

* * *

"In view of all the complaints made and the constant citing of the action of the Commissioner of Insurance of Indiana, I feel it incumbent upon me to ask you, as the legal advisor of this department, whether the issuance by this company of such a contract as I have enclosed, marked, with the application, 1 & 2, is in violation of the law of this State?"

The application for appointment as Special Adviser contains the following:

"I hereby stipulate and agree that if I am appointed, I will aid in promoting the Company's business as its authorized agent; that I shall upon written request, advise the Company as to the 1 fitness and desirability of agents and applicants for agencies, furnish confidentially such information as I may possess regarding the personal habits of applicants for insurance, and those of lapsed policyholders who apply for reinstatement, and such information as may come to my knowledge regarding claims against the Company which might assist in protecting the Company from fraudulent and false claims.

This application is based upon the condition that I shall receive such compensation as others who may be appointed to similar positions, which compensation shall be duly set forth in my contract of appointment.

* * *

* *

"This agreement is entered into with the express understanding that I shall not be required to take a policy of insurance in said Company as a condition for securing the appointment herein applied for."

Article I of the "Special Adviser's Contract" provides that the number of special advisers shall not exceed five hundred.

Article III of said contract provides for the annual payment to the Special Adviser of a certain com

pensation "from the expense element of its premiums," based upon the amount of insurance in force, the "said payment being his compensation for his services as such Special Adviser and for no other consideration."

On the 13th day of February, 1899, the said The State Life Insurance Company was reorganized and reincorporated under the provisions of the act of February 10, 1899. (Acts of 1899, page 40.)

The statutes of the state of Indiana, the articles of reorganization and reincorporation, together with the by-laws of said company, confer authority upon the directors of said company to enter into contracts with agents, representatives and local advisers of the company.

In my judgment, the said "Special Adviser's Contract" is a contract with an agent of the company for the performance of services. It is entirely separate and distinct from any contract of insurance issued by said company, and is not, upon its face, a special insurance contract. It does not, in my judgment, violate any of the provisions of the insurance law of the state of Colorado.

The section of the statutes of this state relating to life insurance companies doing business in this state, above referred to, is as follows:

"No life insurance company doing business in the state of Colorado shall make or permit any distinction or discrimination in favor of individuals, between insurants (the insured) of the same class and equal expectation of life, in the amount of payment of premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes. Nor shall any such company or any agent thereof, make any contract of insurance or agreement as to such contract other than as plainly expressed in the policy issued thereon; nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance any rebate of premiums payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereof,