way of an amendment. I would therefore recommend that in issuing the license you clearly designate that it is authorized to do business only on the mutual plan. Some point was raised as to the identity of the name, towit, "The National Mutual Fire Insurance Company," with the name of a company organized under the laws of Colorado. "No insurance company organizing under the laws of this State shall adopt the name of any existing company or association transacting a similar business, or any name so similar as to be calculated to mislead the public." Section 2215, M. A. S. In reference to this objection, I will state that the prohibition relates to the organization of companies under the laws of Colorado, and prohibits two companies being organized under the same name. While our State, like one or two others, might adopt a statute prohibiting the admission of foreign corporations having names identical with companies organized within our State and doing business here, nevertheless, it has not such a statute. Our General Corporation Laws has a similar statute in regard to corporations generally. The principle in the latter statute is identical with the one embodied in the statute concerning insurance companies. In reference to the statute pertaining to corporations generally, Attorney General Campbell rendered an opinion, which will be found at page 179 of the Biennial Report, 1899-1900. The opinion was written by Hon. Calvin Reed, Assistant Attorney General. I quote from it as follows: "The evident purpose of the above statute was to prevent confusion in the records of your office and to guard against mistakes on the part of the public consequent upon the existence of two or more corporations in this State bearing the same name. "You will observe that the above statute deals only with domestic corporations and not with foreign corporations. The latter, before they are authorized or permitted to do any business in this State, are required to make certain filings in your office. 3 Mills (Rev.), section 499. I M. A. S., sections 500 and 501. "It is immaterial, therefore, that two or more foreign corporations seeking to make filings in your office 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." A statute similar to our own was passed on by the Supreme Court of Illinois. The law of that state reads as follows: "And the auditor of public accounts (the superintendent of insurance) shall have the right to reject any name or title of any company applied for, when he shall deem the name too similar to one already appropriated, or likely to mislead the public in any respect." 1 Starr & C. Anno. Stat., 1st Ed., page 1311. The court, in passing upon this statute, said: "In no provision or requirement of the statute relating to the subject of admitting foreign companies to do business in this state is there anything said or implied as to the name of the applicant. It might be said that section 4 indicates the policy in this state to be that no two corporations doing an insurance business in the state shall have the same or similar names or names which are likely to mislead the public in any respect; but, conceding that to be true, we are at a loss to perceive how it can be maintained that the superintendent of insurance has a discretionary power to enforce that policy, in the absence of legislative enactment authorizing him to do so. To hold that he may do so, as the statute now stands, would be no more nor less than judicial legislation." People ex rel. Traders' Fire Ins. Co. vs. Van Cleave, 47 L. R. A., 795, 798. I would recommend that, under your power as Superintendent of Insurance, you require the applicant to use some proper term to distinguish it from the company having the same name in Colorado, such as, "of Omaha," or "of Nebraska." I return these papers with my approval, in accordance with the foregoing opinion. Yours truly, N. C. MILLER, Attorney General. INSURANCE COMPANIES-INSOLVENCY-RECEIVER. The Attorney General is not authorized to make application to the courts for the appointment of a receiver in case of the insolvency of fire insurance companies. Section 2240, M. A. S., refers to life and accident companies. October 5, 1905. HON. E. E. RITTENHOUSE, Deputy Superintendent of Insurance, Denver, Colo. Dear Sir-Your letter of October 3, relating to the condition of the Mountain Mutual Fire Insurance Company, of Denver, enclosing a report of an examination of said company made for your department by Thomas C. Mills and Morris Lehman, has been received. You state that from said report you have reached the conclusion that said company is insolvent, and refer the matter to this office for such legal action as may be necessary and proper. In reply I beg to say that as to the appointment of a receiver, mentioned by you, I find no authority for the Attorney General to make application for the appointment of a receiver in case of the insolvency of a fire insurance company. Section 2240, 1 M. A. S., provides: "When the Superintendent of Insurance, on investigation, is satisfied that any corporation doing business in this State under this act, has exceeded its powers, failed to comply with any provision of the law, or is conducting business fraudulently, he shall report the facts to the Attorney General, who shall thereupon apply to the District Court for an injunction restraining said corporation from the further transaction of business; and the said court, upon hearing the matter, may issue such injunction or decree the removal of any officer and substitute a suitable person to serve in his stead until a successor is duly chosen, and may make such other orders and decrees as the interests of the corporation and the public may require." It is provided by section 2242, 1 M. A. S., that the Superintendent of Insurance shall have power in person, or by deputy, to make an examination of the books, papers, etc., of certain companies, and "if it shall appear to him that its liabilities exceed its resources, and that it can not within a reasonable time, not more than three months from the date of the original default, pay its accrued indebtedness in full, he shall report the facts to the Attorney General, who shall, upon the report of the Superintendent of Insurance, apply to the District Court for an order closing the business of the corporation and appointing a receiver or trustee for the distribution of its assets among creditors; Provided, That notice of such application and a copy thereof in writing shall be served upon the corporation at least ten days before the same shall be heard; and Provided, That upon hearing the matter the court shall have power to make any order which the interests of the corporation and the public may require." But the foregoing provisions of the statute refer to life and casualty insurance companies, and not to fire insurance companies. I am ready to co-operate with you in any legal manner in securing protection to the public, but I know of no way in which you can proceed in cases of this kind, except as you may be authorized by the laws governing your department. Of course, persons pecuniarily interested and holding claims against the company may resort to the courts for protection. Yours truly, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. IRRIGATION. Irrigation companies diverting waters from one public stream into another should be required to construct and maintain at their own expense suitable self-registering measuring devices. Such devices should be under the control and direction of the State Engineer's department. The services of water commissioners and deputies looking after such devices should be paid for by the boards of county commissioners of the counties in such irrigation districts. May 23, 1906. HON. THOMAS W. JAYCOX, State Engineer, Capitol Building, Denver. Dear Sir-I am in receipt of your request for an interpretation of the provisions of an act of the General Assembly of the State of Colorado, entitled "An Act to Provide for and to Regulate the Exchange of Water Between Reservoirs and Ditches and the Public Streams," approved April 9, 1897, with special reference to the question of the expense connected with the construction, maintenance and operation of a self-registering measuring device, as provided for in said act. I gather from your communication that the water is being diverted by certain irrigation companies from another public stream into the Cache la Poudre river, for the purpose of irrigating lands within the drainage basin of the latter; that the prior appropriators along the Cache la Poudre are complaining that more water is being taken from this stream than is being turned into it from the other stream; that such prior appropriators desire that self-registering measuring devices be placed at the points of "intake," and also at the points of "diversion;" that the expense connected with the construction and maintenance of such devices be borne by such companies; that you appoint suitable persons to take charge of such measuring devices for the purpose of making daily reports, to the end that a proper and equitable division of all the water then in the Cache la Poudre river may be made; and that the expense connected with the employment of such appointees shall also be met by such irrigation companies. The portions of the above mentioned act, necessary to a determination of the points herein involved, provide that any company transferring water from one public stream to another shall be required to construct and maintain, under the direction of the State Engineer, measuring flumes, weirs and self-registering devices, at the point where it is finally diverted from the latter stream. From this provision it is evident that the intention of the law-makers was to place the expense of constructing and maintaining such self-registering measuring devices upon the company so transferring water from one public stream to another, and this is made more evident by section 2 of a following act of the Legislature, page 194, Session Laws of 1901, which provides a means for the enforcement of the above provision of the act of 1897, i. e., that if any such company so diverting water from one public stream to another shall fail or neglect to construct suitable measuring flumes or weirs for the accurate determination of the amount of water taken into, carried through and diverted out of any public stream, then the State Engineer, or Superintendent of Irrigation, shall, upon five days' previous notice in writing duly served upon such company, refuse to allow it to divert any of such water from said stream until it shall cause to be erected or repaired such flumes or weirs. As to the second proposition, that you should appoint suitable persons to take charge of these measuring devices and make daily reports and compel the irrigation companies to meet such expenses, I am of the opinion that the law gives you no such authority, and this is borne out by the additional fact that no means are provided, as in the preceding case, for the enforcement of such demand by your department. |