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tions from being misled, in such a case, by the identity or similarity of the names. If, therefore, a foreign corporation carries on its business under a name in fact the same as, or nearly identical with, that of a domestic corporation, it should be enjoined, however different its corporate name might be. The public is misled, and the domestic corporation suffers, and the foreign corporation ought not be allowed to escape liability on the ground that, while the name that it actually uses, is the same or similar, its corporate name is not. On the other hand, even if the corporate name of a foreign corporation was the same, or nearly identical, with that of a domestic corporation, yet if it did not carry on its business under such name, but under a different and dissimilar one, there would seem to be no reason why it should be enjoined. No harm would be done, and nobody would suffer."

A case where the name of a trust company commonly in use, as distinguished from its full legal title, was protected against infringement by a corporation of another state, is found in the Federal Reporter." Therein it appears that "The Philadelphia Trust, Safe Deposit and Insurance Company" had become generally known as the "Philadelphia Trust Company." It was incorporated under the laws of Pennsylvania, and engaged in a general trust business in Pennsylvania, New Jersey, Delaware, and other states. The Defendant organized under the general corporation laws of Delaware, using the name "Philadelphia Trust Company." In restraining the use of this title by the Delaware Company, it was observed, among other things that:

13. Philadelphia Trust Safe Deposit & Ins. Co. v. Philadelphia Trust Co. 1903), 123 Fed 534. That the courts favor that corporation that first lawfully uses the name, see Central Trust Co. v. Central Trust Co. of Ill. (1906), 149 Fed. 789.

name.

* * *

"While a corporation generally, if not invariably, is confined to the use of its corporate name in judicial proceedings and its transaction of business, it may by usage, be generally called, to the public, by a different The conclusion is almost irresistible that the selection of the name of the defendant was unjust and inequitable, in that it was intended that the defendant should unfairly take advantage of the credit, good name, reputation and business standing of the complainant, as an old and successful corporation, to the prejudice of the complainant and in fraud of the public."

The title "Farmer's Loan and Trust Company" was protected in behalf of the old established New York company against interference by a Kansas corporation of the same name, in so far as the foreign corporation operated in New York, by requiring it to add the word "of Kansas" to its name, in its New York operations." The court remarked that:

"The name 'Loan and Trust Company' is not an uncommon one, as applied to certain monetary institutions; and it would seem that the prefix 'Farmer's' has been applied to designate companies engaged in similar business in different states; there being, according to the affidavits, no less than seven 'Farmer's Loan and Trust Companies' in the United States."

The two companies were not engaged in the same activites. The New York corporation does a regular trust company business, whereas the defendant confined its operations to selling securities, but there was evidence that it was profiting by the complainant's standing in disposing of them from its New York office, and the public was being deceived.

14.

Farmers' Loan and Trust Co. v. Farmers' Loan and Trust Co. of Kansas (1886), 1 N. Y. Supp. 44, 21 Abb. N. C. 104.

Where there was no statutory provision protecting a previously adopted corporate name, and protection was sought on equitable grounds alone, in analogy to trademark protection, it was held that the name "The Nebraska Loan and Trust Company" would not exclude the subsequent use of the name "Nebraska Loan and Trust Company" in another city of the state. The fact that the word "Nebraska" is a geographical name, appears to have largely influenced this decision.15

15. Nebraska Loan and Trust Co. v. Nine (1889), 27 Neb. 507, 43 N. W. 348, 20 Am. St. Rep. 686.

CHAPTER III

Special and Exclusive Privileges of Trust Companies

10. Constitutional Provisions in Their General Aspect and Police Power. The principle of equality of right of every citizen in and under the law finds its expression, er industria, in our federal and state constitutions. This expression, in its various manifestations, is like that of statutes declaratory of the common law. In essence it confers nothing and is a limitation on nothing, not previously existing, according to the pole star of construction in our theory of right. Rather is it to be regarded as a guaranty against encroachment by legislatures claiming to act within omnipotence where not specifically limited.

Whether legislatures in this country without restraining influence of constitutions, would possess the omnipotence, that is ascribed to the English parliament, need not here be discussed. It is certain, however, that our habit is to look only to our constitutions for definite check upon their powers, and, generally, we manage to get along without having to say what are legislative powers outside of specific constitutional limitations. It is certain they are not omnipotent so far as bargaining away police power for the future is concerned.1

1. Stone v. Missouri (1879), 101 U. S. 814, 25 L. Ed. 1079.

To me, however, it seems that the problem may affect or give color to the quality or kind of construction of constitutional restraints. We see, at least, that insofar as there are grants of power by our federal constitution, these operate against the unlimited right of contract and may take away vested rights acquired thereby." This would imply that the people of a representative form of government are, through their legislative assemblies, omnipotent, save as they are restrained by a superior document more directly emanating from them and called a constitution. Viewed from this standpoint, restrictions in a constitution should be construed with narrowness, whether they be strictly in such form or read like grants, but the pole star above referred to comes into play so as to justify all enactments seemingly against equal rights under what is popularly known as a state's police power, a something defying definition fully satisfactory either in inclusiveness or exclusiveness. It has been said that: "To embalm it ( police power) in any fixed or rigid formula would be to destroy its value, for it would then be deprived of its indispensable quality of adaption to changing conditions, and thus defeat the ends it was intended to promote." When it is attempted to describe its extent, the best we are able to do is to speak in general terms. And it is paramount to any rights under contracts between individuals." There seems no barrier to its effect except in the "fundamental rights secured by

2. L. & N. Ry. Co. v. Mottley (1911), 219 U. S. 467, 55 L. Ed. 297. 3. McGuier v. Chicago, B. & Q. R. Co. (1906), 131 Iowa 340, 108 N. W. 902, 33 L. R. A. (N. S.) 706.

4. Chicago, B. & Q. R. Co. v. Illinois (1906), 200 U. S. 561, 50 L. Ed. 596, 4 Ann. Čas. 1175; Jacobson v. Massachusetts (1905), 197 U. S. 11, 49 L. Ed. 643, 3 Ann. Cas. 765.

5. Manigault v. Springs (1905), 199 U. S. 473, 50 L. Ed. 274.

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