Augustus John Cuthbert Hare.

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sponsible. To accomplish thin, large powers and con-
siderable discretion must necessarily be lodged with
some one. The legislature has placed the execution
of the insurance law and the conduct of the depart-
ment in tbe control of the superintendent. From the
provisions referred to it will be seen that he is to de-
termine the character and responsibility of an applying
company, or of one already admitted, if there is reason
to suspect that it is in an unsound condition. To do
this, rigid examinations are authorized, and other
safeguards provided. The legislature has prescribed
the standards by which an insurance company is to be
admitted or allowed to continue business after admis-
sion; but whether the companies come up to those
standards or requirements is to be determined by the
superintendent. He is intrusted with the exclusive
control of the department. It is he who values their
assets and investigates their condition. He examines
the evidence of fair dealing or fraud on their part; and
it is he alone who must be satisfied before a license is
granted. On evidence satisfactory to him a license
may be revoked; and indeed every one of these steps
in granting, refusing, or revoking the authority of the
insurers involves the exercise of discretion and judg-
ment, which is vested in the superintendent alone.
No appeal from his determination is given, nor any
power of review in any other officer or tribunal recog-
nized in the law. When we find from the examination
of the statutes that official discretion and judgment
are involved in the determination of tbe superintend-
ent of insurance, and that he has acted upon the ap-
plication made, the end of the inquiry is reached, so
far as the present proceedings are concerned. It is
well settled that mandamus will not lie to octepel an
officer to perform an act or duty which necessarily
calls for the exercise of judgment and discretion.
Martin v. Ingham, 88 Kan. 651, High, Extr. Rem. S 24.
The ease of Insurance €k>. v. Welch, 29 Kan. G76, is re-
ferred to as sustainsng the right of the plaintiffs to the
remedy of mandamus. The court was there consider-
ing the validity of a law the operation of which de-
pended upon a contingency. An action was brought
to recover from the insurance company certain fees
prescribed by what is known as the '^retaliatory stat-
ute." It was argued that the law was incomplete when
it came from the hands of the legislature; that its
operation depended upon the action of a foreign State
and the superintendent of insurance, and was there-
fore invalid. The court, in meeting the objection, held
that the rule regulating the fees to be collected was
fixed by the legislature in the act challenged, and not
by the superintendent. It was suted in the opinion
that **it is not left to the State superintendent to de-
termine what the rule shall be. His duty is simply to
asoerUin the facts, and apply the rule. He may not
arbitrarily determine upon what conditions the plaint-
iff may enter this State. He can only enforce the con-

dition which the legislature has imposed." The
question whether the determination of the superin*
tendent involved offldal discretion was not in the mind
of the court when that language was used; but only
whether the superintendent of insurance had beei>
delegated or was exercising power by prescribing the-
conditions under which insurance companies might
enter the State.

A VERT important case, involving the stat-
utory right of taxation of shares of stock
held by citizens of Ohio in a foreign corpo-
ration, was decided by the supreme court of
that State, in Lee v. Sturges, 19 N. E. Rep.
560. The opinion of the court is exhaustive
of the subject. The qnsstions arising upon
the record are : 1. Whether shares of stock
in a foreign corporation held by citizens of
Ohio, which has in this State substantial
property upon which it pays taxes, are taxa-
ble here. 2. Whether shares so held are
taxable here where the company is formed by
consolidation of an Ohio company with com-
panies of other States and has substantial
property in the State on which it pays taxes
— ^the larger portion of its property being
without the State. The claim against their
taxability is substantially that there is no
law for it, that holders of such stock are au-
thorized to omit them from tax returns, and
that the levying of such taxes would impose
unequal burdens and result in double taxa-
tion. The court says as to the last point:

Nor is it apparent that double taxation would
follow. The shares of stock are distinct from the cap-
ital or property of the company. That may be largely
real estate. The shares are In the nature of personalty.
They can have no locality, and must therefore, of ne-
cessity, follow the person of the owner, unless other
provision is made by statute. The corporation is the
legal owner of all the property of the company, real
and personal, and, within the powers conferred upon
it by its charter, and for the purposes for which it was
created, can deal with the coporate property as abso-
lutely as a private individual can deal with his own.
The interest of the shareholder entitles him to parti-
cipate in the net profits in proportion to the number
of his shares; to have a voice in the selection of officers
to manage the business of the company in like propor-
tion; and, upon its dissolution, the right to his pro-
portion of the property that nuty remain of the
corporation after pajrment of its debts. This is a
disUnct, independent interest or property, held by the
shareholder like any other property that may belong
to him; is under his sole control, so that he may sell
or hypothecate it. He is entitled, from net earnings
of the corporation, to dividends upon his stock, and
the value of the stock depends largely upon its capa-
city for earning dividends. The shares of stock may
be worth much more than the property of the corpo-
ration; that is, the franchise may be very valuable,
while the visible capital may be of but little value, and
dividends may be greatly out of proportion to the


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Vol. 5jo.



tangible property, as frequently occurs in regard to
street railroads, gas companies, electric ligbt compan-
ies, etc People y. Oommissionert, i Wall. 244; Bank
▼. State, 9 Yerg. 490; Cook v. Burlington, 69 Iowa.
It follows from this that, although the shareholder may
l>e affected as regards the extent of his dlTidends by a
taxation of the property of the corporation, yet a tax
on the shares is not a tax on the capital of the com-
pany, and, e converso, a tax on the capital is not a tax
on the shares held by the stockholders. Taxation of
the capital and property of the corporation may be
accepted by the State as an equivalent for, but it is
not the same as, a tax on the shares. We have many
subjects of taxation which approach more nearly to
double taxation than that of taxing capital stock and
individual shares of stock in addition. Take the fami-
liar instance of the taxation of mortgages. The owner
of real estate— a farm, for instance— mortgages it for
money to invest in cattle to stock it. He pays taxes on
the land without deduction, and on the live stock, and
the lender of the money pays taxes on the mortgage.
By reason of this latter fact the lender demands more
Interest, which the farmer pays. He thus pays taxes
on his farm, on his stock, the result of the borrowed
money, and, indirectly, the whole or a considerable
portion of the tax on the mortgage; and yet, reduced
to its last analysis, this is not regarded as double tax-
ation, because value is taxed each time. At all events,
it is unquestionably the legal rule in Ohio. It is not
-impossible that a large portion of the stock of this cor-
poration may be held by residents of this State. In
such case, if the claim of the defendant should prevaU,
large amounts within the State, represented by these
-shares, would escape taxation, while the shares of
stock held by our citizens in foreign corporations
'Which happen not to have property within the State
-would bear their full burden. Such a rule would not
tend to uniformity or equality of taxation; and, inas-
much as the tax on the property of the corporation
within the State is not a tax on the shares, and does
<aot, in tliis case, afford an equivalent, and inasmuch
as the manifest purpose of the legislature was to reach
all ''investments in stocks" in some form, we think a
rational construction of the statute can lead to no
other conclusion than that the telegraph stock cannot
oome within the purview of the exemption clauses.

The rights of creditors aa against a volun-
tary conveyance, made with fraudulent in-
tent, is discussed in an interesting manner by
the Maryland Court of Appeals, in Diggs v.
McCuUough, 16 Atl. Rep. 458. It has long
been a question with some courts as to the
effect of such conveyance upon subsequent
<^editors, the doctrine being fully established
that as to existing creditors such a convey-
ance is void. It is here held that a volun-
tary conveyance, if made with the fraudulent
intent or design of hindering or delaying sub-
sequent creditors, is void. Though the court
divide on the question as to whether the facts
in this case show such fraudulent intent
aga'nst subsequent creditors, the decision is
tnanimous so far as the doctrine of law is
<.*onoemed. It is further held that convey-

ances which can be attacked by subsequent
creditors can be attacked by the trustee in
insolvency representing them, and that the
former cannot be debarred from attacking a
deed made in pursuance of a scheme to de-
fraud them merely because it has been re-
corded. Stone, J., citing Williams v. Banks,
11 Md. 251 ; Mather v. Heather, 57 Md. 484 ;
Moore v. BUndheim, 19 Md. 165, says:

These cases hold that a voluntarily deed, which is
fraudulent in law, is void as against pre-existing cred-
itors, and also that a voluntary deed which is made
with the design to defraud subsequent creditors may
be impeached by those so defrauded. But they also
hold that where a voluntary deed is made without de-
sign to defraud subsequent creditors, and is recorded,
it is valid against all subsequent creditors." It seems
to me that this is a succinct statement of the law on
that subject as it exists in this State to-day. A deed
may be fraudulent in fact— that is to say, made with
the design to hinder, delay, and defraud existing cred-
itors— yet, unless it was made, with the intention and
design to defraud subsequent creditors, these latter
have no right to impeach it. They deal with the party
with knowledge, either actual or constructive, of the
existence of the deed. It is very apparent from these
cases that, in order to entitle a subsequent creditor to
relief against a duly recorded deed, he must show
something more than that deed was fraudulent in fact
as against existing creditors. He must show the intent
and design to defraud those who might thereafter be-
come his creditors. This fraudulent design must be
shown by some declaration or acts of the party seeking
to defraud. But, as fraudulent conveyancers do not
generally disclose their designs, we generally have to
rely upon a scrutiny of their acts. Unless, therefore,
the grantor has done something, or said something,
from which we can reasonably infer that at the time
he executed the deed it was with the intent to defraud
the subsequent creditors, the deed as to them must

A question of damage by obstruction of
water-course came before the Supreme Court
of Nebraska, in the case of McCleneghan v.
O. & R. V. Ry. Co., 41 N. W. Rep. 350.
Ther^^ defendant a railroad company was
authorized by law to construct its road across
a stream. Damage was done to adjacent
lands, by the construction of the bridge
which caused the water and ice to gorge and
overflow such land. It was contended by
defendant, that the highest obligation resting
upon it in the construction of the bridge, was
that of its safety and use in the general re-
quirements of railroad traffic. This was
substantially the view taken by the lower
court as expressed in its instructions. The
court, in reversing the case, hold that de-
fendant is liable for the damage done, al-
though authorized by law to build the bridge
and that in the selection of the character
of bridge to be built, due regard must be
had to the rights of the adjacent land
owners, as well as to the safety of the public
who may travel over its road.

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No. 10


1. Right to iDfliot Corporal PaniBbment.

2. Relation of Teacher and Pupil.
8. Objects of Punishment.

4. When Punishment may be Inflicted.

5. Offenses Committed Away from School.

6. Severity of Punishment.

1. Bight to Inflict Corporal Punishment. —
Under proper circumstances, the law confers
upon the teacher authority to inflict reason-
able and moderate corporal punishment upon
the pupil.^ This right of the teacher is also
recognized by statute.^ While the law sanc-
tions corporal punishment, it is evident that it
should be reserved for the baser faults. It
is a coarse remedy and should be employed
upon the coarse sins of our animal nature.
In an early Indiana case, strong ground is
taken against this mode of correction.'
*^The public seems to cling to a despotism in
the government of schools which has been
discarded everywhere else," the court as-
serts. In that case, the question is suggested
^ ^whether such training be congenial to our
institutions and favorable to the full develop-
ment of the future man, is worthy of serious
consideration." The court proceeds: '*In
one respect the tendency of the rod is so evi-
dently evil, that it might, perhaps, be ar-
rested on the ground of public policy. The
practice has an inherent proneness to abuse.
The very act of whipping engenders passion,
and very generally leads to excess. Where
one are two stripes only were at first intended,
several usually follow, each increasing in vigor
as the act of striking inflames the passions.
This is a matter of daily observation and ex-
perience. Hence the spirit of the law is, and

1 8 Qreenl. Ev., S 63; State v. Mizner, 45 Iowa, 248;
8. c, 24 Am. Rep. 769; 2 Kent's €k)m., 169, 170; Van-
vactor V. State (Ind.), 15 N. W. Rep. 841; Common-
wealth V. Randall, 4 Qray (Mass.), 86; Lander v.
Seaver, 82 Yt. 114; Balding v. State (Ot. App. Tex.),
24 Reporter, 814; Stanfield v. SUte, 48 Tex. 167;
Dowlen v. State, 14 Tex. App. 61; Patterson v. Hitter,
78 Me. 509; Cooley's Const. Lim. (5th ed.)f 417; Ency-
clopaedia of Education, 189, by Kiddle and Scbem. See
note to Fitzgerald v. Northcote, 4 F. A F. 668, for col-
lection of English authorities: Cooley on Torts, 171,
172, 288.

s Texas Penal (>)de, art. 490, par. 1; Balding v.
State, 23 Tex. App. 172; Button v. State, 28 Tex. App.
886; Stanfield V. State, 48 Tex. 167; Dowlen v. State,
14 Tex. App. 61.

> Cooper V. McJunkin, 4 Ind. 290, 291.

the leaning of the court should be, to dis-
countenance a practice which tends to excite
human passions to heated and excessive ac-
tion, ending in abuse and breaches of the
peace. Such a system of petty tyranny can-
not be watched too cautiously nor guarded
too strictly. The tender age of the sufferer
forbids that its slightest abuses should be
tolerated. * * * The very act of resort-
ing to the rod demonstrates the incapacity
of the teacher for one of the most important
parts of his vocation, namely, school gov-
ernment. For such a teacher the nurseries
of the republic are not the proper element.
They are above him. His true position will
readily suggest itself. It can hardly be
doubted but that public opinion will, in time,
strike the ferule from the hands of the
teacher, leaving him as the true basis of
government only the resources of his intel-
lect and heart. Such is the only policy
worthy of the State and of her otherwise en-
lightened and liberal institutions. It is the
policy of progress. The husband can no
longer moderately chastise his wife ; nor, ac-
cording to the more recent authorities, the
master his servant or apprentice. Even the
degrading cruelties of the naval service have
been arrested. Why the person of the school
boy, ^with his shining morning face,' should
be less sacred in the eye of the law than that
of the apprentice or the sailor, is not easily
explained." *

2. Relation of Teacher and Pupil, — ^In En-
gland, in the time of Edward IV, the relation
of the teacher to the pupil appeared to be
that of a temporary guardian.^ Hawkins
places parent and child, master and servant ^
and schoolmaster and pupil on the same foot-
ing,^ which seems to be borne out by many
cases.^ A teacher has been likened to a
public officer,^ but on the other hand it is

* According to the old Roman law, the father wa»
privileged, under certain circnmstances, to kill or
abandon his newborn child : 2 Whart. Orim. Law, %
1568, p. 408; 2 Kent's Ck>m., 208 eU seqr^ 1 Bl. Com.»
458. Anciently a husband might give his wife moder-
ate correction : 1 BI. Com., 444. In North Carolina^
this doctrine wes seemingly favored : State v. Black,
Winst. (N. C.) 266; State v. Rhodes, PhU. (N. C.) 453;
Schoulder's Dom. Bel. (8d ed.) S 244, p. 886.

« Yearbook 7, Edw. IV.

« Haw. PI. Cro., 150.

' Amberry v. James, Tent. 70; Newman v. Bennett,
2 Ch. Rep. 195; Penn v. Ward, 2 O. M. R. 838; Lamb
V. Burnett, 1 Cro. & J. 291.

> Reeves on Dom. Rel., 288.

Digitized by


Vol. 28.



argued that in no proper sense can he be
deemed a public officer, exercising by yirtae
of his office discretionary and qtiasi judicial
powers.* Many authorities hold that the
teacher stands with reference to the pupil in
ioco parentis,^ 9Jkd the books commonly as-
sume that the teacher has the same right to
chastise the pupil as the parent the child.^^
While the relations are analogous, and the
teacher is, to a limited degree, invested with
discretionary power, yet the teacher's right
in this respect will seldom quite equal that
of the parent. ^^ No .schoolmaster should feel
himself at liberty to administer chastisement
<x>-exten8iye with the parent.^'

3. Objects of Punishment — ^The legal ob-
jects and purposes of punishment in schools
are like the objects and purposes of the State
in punishing the citizen. They are three-
fold: First, the reformation of the highest
good of the pupil ; second, the enforcement
and maintenance of correct discipline in the
school; and third, as an example to like evil
doers,^* It is the duty of the teacher to
train and qualify the pupils for becoming
useful and virtuous members of society. To
this end it is indispensable that he be clothed
with power to govern them, to quicken the
slothful, to spur the indolent, to restrain the
impetuous, to control the stubborn and to
reform bad habits. In the school as in the
family, there exists upon the part of the
pupils the obligations and obedience to law-
ful command, subordination, civil deport-
ment, respect for the rights of other pupils
and fidelity to duty. These obligations are
inherent in any proper school system, and
constitute, so to speak, the common law of
the school. Every pupil is presumed to know
this law, and is subject to it whether it has
•or has not been re-enacted by the district

• Lander v. Seaver, 82 Y 1. 122.

10 Danenhoffer v. State, 69 Ind. 285, 209; s. c.,85 Am.
Rep. 21tf ; Com. v. Seed, 5 Pa. L. J. Bep. 78; State v.
Pendergrass, 2 Dev. & Bat. (N. G.) 865; s. c, 81 Am.
Bep. 416; Fitzgerald v. Northcote, 4 Fost. & Fin. 656;
State V. Burton, 45 Wis. 150; s. C, 80 Am. Bep. 706;
S. C, 18 Am. L. Beg. (K. S.) 288; note. 238; Heritage
V. Dodge (N. H.), 9 At!. Bep. 722; Beeves Dom. Bel.,

u Bishop on Grim. Law (7Ui ed.), S 886; 1 Hawk. P.
€. (dth ed.), eh. 60, S 28.

M Bishop on Grim. Law (7th ed.), $ 886; Yanvactor
▼. SUte, 118 Ind. 276; s. C, 15 N. W. Bep. 841.

u Lander v. Seaver, 82 Yt. 128.

M SUte V. Mizner, 50 Iowa, 145, 149

board in the form of written rules and regu-

4. When Punishment may be Inflicted. —
Ordinarily, lawful punishment is limited to
cases of misconduct and cannot be adminis-
tered, unless where education is by law com-
pulsory, to compel pursuance of any particu-
lar line of study,^ and certainly not for the
gratification of passion or rage ;^^ and it has
been adjudged that it cannot be inflicted for
refusal to do something which the parent has
requested that the pupil be excused from
doing. The remedy in such case is not cor-
poral punishment but expulsion.'^ Unques-
tionably, corporal punishment may be ad-
ministered for disobedience to lawful and
reasonable command. ^^ Acts done to deface
or injure the school room, to destroy the
books of scholars, or the books or apparatus,
for instruction, or the instruments of punish-
ment; language used to other scholars to
stir up disorder and insubordination, or to
heap odium and disgrace upon the master ;
writings and pictures placed so as to suggest
evil and corrupt language, images and
thoughts to the youth who must frequent the
school ; all such or similar acts tend directly
to impair the usefulness of the school, the
welfare of the scholars and the authority of
the master. By common consent and by the
universal custom of our schools, the school
master has always been deemed to have the
right to punish such offenses. Such power
is essential to the preservation of order, de-
cency, decorum and good government in
schools.^ So, punishment may be inflicted
for a tiolation of reasonable rules,^ as a rule
against swearing and quarrelling,^ or fight-

u State V. Burton, 45 Wis. 150; Danenhoffer v. State,
69 Ind. 295, 299; State v. Pendergrass, 2 Dev. A Bat.
(N. C.) 365.

M Whart. Crim. Law (9th ed.)f 682; Bulison v. Post,
79 III. 567; Morrow v. Wood, 85 Wis. 59; s. c, 18 Am.
L. Beg. (N. S.) 692.

17 Begina v. Hopley, 2 Fost. & Fin. 206.

18 The parent requested that the pupil be excused
from studying algebra, and also from school in the
afternoon, because of ill-health: State v. Mizner, 50
Iowa, 145, 152. See Morrow v. Wood, 85 Wis. 59.

19 Danenhoffer V. State, 69 Ind. 295; s. c, 85 Am.
Bep. 216.

» Lander v. Seaver, 82 Yt. 114, 121.

n Sheehan V. Sturges, 58 Conn. 481; s. c, 22 Be-
porter, 455.

»Deskinsv. Oose, 85Mo. 485; s. c, 55 Am. Bep.

Digitized by




No. 10

ing," or truancy.** Likewise, for a refusal
to solve examples m arithmetic,* or to render
an excuse of absence from school without
leave.** But chastisement cannot be admin-
istered for the violation of a rule requiring
pupils to ^^pay for the wanton and careless
destruction of school property," for the rea-
son that such rule is unreasonable, since in
simple carelessness there is no purpose or
intent to do wrong or violate rules ; moreover,
no rule is reasonable which requires of the
pupils what they cannot do.*^ So, disturbing
the school by making a noise resembling a
cough is an act of contempt and defiance of
the teacher's authority, for which reasonable
chastisement may be administered.^ It is
indispensable tojustify the punishment that
it be administered for some specific offense,
and that the pupil is given to understand
why it is so administered. Punishment in-
fiicted when the reason of it is unknown to
the punished is subversive and not promotive
of its true objects and cannot be justified.
The pupil must know the reason for the
chastisement, else reformation cannot be ex-
pected therefrom. Just the contrary might
be looked for. In conformity to this rule,
the teacher is not required to state to the
pupil in clear and distinct terms the offense
for which he or she is punished. It only re-
quires that the pupil, as a reasonable being',
should understand from what occurred why
the punishment is inflicted.** Where a
pupil has been habitually refractory and dis-
obedient the teaching in punishing him for a
particular offense may take this into consid-
eration, and it is not necessary that he should
inform the pupil at the time that the punish-
ment is given for his past as well as his pres-
en*; misconduct.*^ Corporal punishment may
be inflicted, although the pupil is of legal
age,*^ and although the parents forbids it.**
5. Offenses Committed Away from School,

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