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is to hold them, subject to the order of an individual, acting not as a judge, and exercising ro judicial functions, and not necessarily guided by the principles of law, and from whose order there is no appeal; that the resolve is a special and personal statute, prescribing an exceptional and peculiar rule of conduct upon this single corporation; and therefore unjust, and in violation of legis
The original resolution, which was reported to the legislature, contained the first proviso only. As reported, it manifestly provided that the charter should be repealed on September 1st 1875, unless upon the happening of a certain event, the repeal should go
into effect. .An amendment was added, by which in case of disagreement between the commissioner and the insurance company, another committee was appointed to ascertain the amount of deficiency, if any, and if the amount, so ascertained, should be paid in, the resolution should be inoperative and void. It is a question which it is not now necessary to determine whether the charter is already repealed, or whether its repeal occurs at the expiration of the time which is limited for payment of the deficiency, if any there be, which may be found by the two judges, and upon non-payment of the amount. I have already suggested that the true construction is that the charter is repealed, to take effect or not to take effect, upon the happening of an uncertain event. If the charter is repealed, there can be no doubt of the power of a legislature to appoint some person to act merely as custodian of the assets of the corporation. But assuming that the charter is now in existence and unrepealed, I am of the opinion that the legislature has the power, if in their opinion the public interest and the rights of the creditors of a particular corporation demand it, to take away the custody of the assets of such corporation from its directors and intrust the custody to an officer of the state, pending an investigation into the company's solvency, and the determination of the fact whether the event has happened upon which a repeal of the charter will take place. It is apparent from an inspection of the resolution that the legislature deemed the corporation insolvent, and that the liabilities exceeded the assets $100,000, and also was of opinion that the corporation had not complied with the requirements of law and that the affairs of the company were in so precarious a position that it was proper to take the unusual step of repealing the charter. But the legislature was also willing to give the company an opportunity of making good the deficiency, and further was willing not to permit the decision of the insurance commissioner, upon the question whether the deficiency had been supplied, to be final, but to intrust the final hearing and determination in regard to the sufficiency of assets to two persons, whose judicial position peculiarly adapts them to pass upon disputed questions of facts, and whose official character precludes the suspicion that injustice might be done, and should assure the creditors that their rights are to be guarded. That investigation would necessarily consume time. The question presented itself, Do the interests of the cestuis que trust in the property of the company require that, during the investigation, the assets, which in our opinion have seriously impaired, shall remain in the hands of the directors? The legislature decided to place the assets, for.the time being, in the custody of an officer of the state, and derived their power so to do from the general power which had been reserved over the affairs of this particular corporation, that of amendment of its charter at its pleasure. “Whatever might be true, if the charter was a close one, the General Assembly could impose upon the defendants any additional conditions, or burthens connected with the grant which they might deem necessary for the protection or welfare of the public, and which they might originally, and with justice have imposed:” English v. N. H. f Northampton Co., 32 Conn. 243; Commissioners, fic., v. Holyoke Waterpower Co., 104 Mass. 446. It is not necessary that the resolution should be styled an amendment: Bishop v. Brainard, 28 Conn. 298. The legislature has reserved to itself the control of this charter, and can modify it to meet any exigency which may arise in the affairs of the corporation; and where the legislature has determined that the pecuniary interests of the creditors are so imperilled that the necessity of repealing the charter may arise, it would seem that the legislature has the power to provide that the officer, who has the oversight of all the insurance companies of the state, is the proper person to have the exclusive custody of the assets of this corporation, and act as the treasurer for the time being. The legislature could originally have imposed this condition upon the company: they can imposė it at any time when they deem it necessary for the protection or welfare of the corporation.
It is also earnestly contended that the resolution directs the commissioner to hold the assets subject to the order of a committee, not acting judicially, and from whose order there is no appeal, and who in his directions is not necessarily acting in conformity with principles of law.
It is true that the Chief Justice will act as a committee or agent of the legislature, and not strictly in his judicial capacity, and if the resolution and the general statutes in regard to life insurance corporations, whose charters have been repealed, placed the assets under the control of a committee, to be disposed of as the committee pleased, and without the control of the courts of the state, such acts would properly be the subject of severe criticism, and might be declared to be inoperative. This resolution simply empowers the commissioner to hold the assets. He cannot sell or dispose of them under the resolution, but is merely their custodian.
The Chief Justice has only authority to notify the commissioner either to return the assets to the company, or that the event has not taken place upon which the repeal of the charter is avoided, after which the commissioner is to be governed by the general statute.
He then becomes a trustee under the exclusive direction and control of a court of equity, and subject to its decrees.
The assets are not to be managec or disposed of, and the avails are not to be paid in accordance with the order of a committee, but in pursuance of the general statutes and under the direction of the Superior Court, a court of general jurisdiction, and of full chancery powers. The weight of the compiainarts' argument bore upon the clause of the resolution which they considered most unjust and prejudicial to their interests. I think that they misapprehend the nature of the powers of the Chief Justice over the assets, which is so limited that there is no interference with the rights of creditors.
Upon the argument of the motion, the provisions of the general statute were criticised by the complainants. The bill does not ask for the interference of the court upon the ground of the invalidity of the statute, but the court is asked to prevent the commissioner from taking possession of the assets under the authority of a resolution of the General Assembly, which is alleged to be void. I do not deem it therefore incumbent upon me at the time to consider the character of the statute.
The suggestion which has been made in regard to the control of the legislature over those charters, in which a power of amendment or repeal has been reserved, applies to the objection that this resolution is a special and peculiar law by which the rights of this corporation are to be jeopardized, differing from the law applicable to all other corporations in like condition. All insurance companies in Connecticut are created by special charter. Each company is under the particular supervision of the legislature, and is liable, in case of insolvency or malfeasance, to be controlled by such action, applicable to the special case, as shall serve to protect creditors, or shareholders, or the public.
Sundry affidavits were read for the purpose of showing that Mr. Stedman had not informed the company, prior to September 1st, of the amount of the alleged deficiency, and had not given the company an opportunity to supply the required amount, and had not acted justly towards the company since the passage of this resolution. Counter affidavits were presented by the commissioner. If any steps were to be taken by the commissioner in advance of the action of the company, prior to September 1st, in regard to which I express no opinion, I am not satisfied that the commissioner failed to do whatever the resolution, or the statutes, or the duty which he owed to the corporation, or to the public, imposed upon him. The corporation does not seem to me to have suffered in consequence of a neglect of the commissioner to keep them informed of his views and wishes.
The motion for a provisional injunction is denied, and the restraining order now in force is vacated.
Supreme Court of Delaware.
THE STATE EX REL. LYNCII v. BRATTON.* The father is primâ facie entitled to the custody of his children, and where he is of good character and able and willing to maintain them, his right is paramount to that of all other persons, except in the single case of an infant of such tender, years as to necessarily require for its own good the care of its mother,
But the father's right is not absolute or unqualified. He may relinquish or forfeit it by contract, by his bad conduct or by his misfortune in being unable to give it proper care and support.
* We are indebted to W. C. Spruance, Esq., for the report of this case.-ED, AM. LAW REG.
Where a father has, through his fault or his misfortune, lost or forfeited his right, and subsequently, by reformation or otherwise, reinstates himself in a position to properly care for and maintain his child, his right does not necessarily revive, but a court upon habeas corpus will exercise a sound discretion in view of all the circumstances with reference to the welfare of the child itself.
A court will never order a child into the custody of an improper person, but where the child has reached the age of discretion the court will in many cases allow it to make its own choice, even though it choose a person whom the court would not voluntarily appoint.
There is no fixed age at which the period of discretion is considered to begin. It depends on the capacity of the child to reason sensibly, though as a child, in regard to its condition, its feelings, and its future welfare.
Courts have no jurisdiction over the religious discipline and instruction of children. Such matters are proper to be taken into consideration among other circumstances, in determining the custody of children where it is in dispute, but a difference in regard to religious views does not of itself afford any ground for interference by the court on petition of a father who has lost or forfeited his right of custody, with the person who has acquired such right.
The facts are stated in the opinion of the court, which was delivered by
WALES, J.--The writ of habeus corpus in this case was issued upon the petition of John F. Lynch, and directed to James Bratton, commanding him to bring before me the persons therein named, together with the cause of their being taken and detained.
On the day appointed for the return of the writ and the hearing of the petition, Mr. Bratton produced the persons named in the writ, to wit: Mary Lynch, aged 16; John Lynch, aged 9, and James B. Lynch, aged 6; and also made a return in writing and under oath, in which he certifies the causes of their detention by him. The substance of them is that the said Mary, John and James are the children of John F. Lynch and Emma J. Lynch, who were married on the 5th of February 1856; that Emma was the daughter of the respondent, who, in the month of October 1859, finding that the relator was unable to support his wife and two children, William, then two years old, and Mary, an infant of three weeks, took them to his own house, where they remained until March 1866; that during this interval Emma and her children lived separate from the relator, who contributed nothing whatever to their support; that in the early part of 1866 Emma and her children went to live with the relator in Wilmington, where he had commenced business; that about this time, or shortly after, the relator acquired habits of intemperance which grew to be so