Telegram-herald., 1889-06-08


whether ne transcended the authority
vested II hun by the statute, which
conlers hls power and vested such au-
thouty in him. During tue course OF
tne argument | have gwen expression
/ 20 some considerations which have
lead mc o. doubt, / may fairly say,
Incline ms Judgment against the VALID
rs OF the defense relied upon IA THIS
PARTICULAR, which b, that the statute
vests in the Ofhcer or warden, author
rs 10 determine the nature OF the pun
lsament which he Will ntilct, subject 10
| certain express limitations contained IN
/ the statute, 10 which | Will refer pres
/ entity.
"lnasmuch as the argument IN the
case has been substantially all on one
SIDE, which = the natural result OF the
situation, the court seeming 10 incline
/ the other way, | have not said anything
IA regard 10 the considerations which
bear upon the other side OF tins Ques-
ton They have been somewhat adj
verted 10 IN the course OF the argument.
lt IS asserted by counsel that the records
snow, and | take IL that II j. 80, that Il
has been a continuous practice 10 intlict
punishment of tins sort IN tins prison
and ~ the Jackson prison for At least
a dozen years prior To tins occurrence.
/ lie ls manifest from the statute that the
| Legislature intended To allow the
warden To lntllct corporal punishment
/ OF some kind. The nature, character
! and limits OF such corporal punishment
- Is allowed are not defined by the
| statute at all, and they would seem only
! 10 be limited by the express prohibition
\ that lashlng upon the bare body, or
/ other brutal or inhuman punishment.
! shall not be allowed. Now 1t Is a mat
/ ter of public notOrlety, of which the
court must take judicial notice,
/ that it Is the custom of
/ the Legislature ut It's biennial sessions
20 appoint committees whose duty 1t i
10 make examination OF the condition
Of the prisons and 10 examine INTO their
proceedings and examine their records.
| The court must assume that that duty
mas been performed. \ necessary in
| ference Is that the Legislative depart
| mcnt has been cOgnlZant of the fact
| that for a dozen years, at least.
| whippings and fOgglngs with Il strap
| have been practiced IN these penal
/ Institutions, IN which there Is warden,
I and under MS direction. Now that un-
/ dOubtedly Is q consideration or argu-
meut of a good deal OF force in deter
mining what the legislative intention
| and understanding has been. In some
sense the legislative department of the
/ government Is continuous one, and II
/ Is significant that the records of these
institutions show that these fiOggings
I nave taken place, and with the fire.
/ queuCy which has been testified to bY
/ Or Way to have occurred more than
/ hundred times during his less than
/ three year : service as physician at the
| Iona prison, and that It must have
| been a fact which was familiar To the
| legislative department Of the govern
I ment. Another consideration of much
| Importance involved IN the critical
| point with respect to the liability Of the
/ defendant under the statute arises out
I OF this state of facts.
"The statute cOnfessedlv by plain
terms, or If not, then certainly by
/ necessary implication provides that the
warden may lntlict corporal punish
/ ment. That power is negatved IN GER
/ tam cases, or rather in respect of GER
tam modes of punishment. Now, mas
/ much As there II no definition of the
/ method. no prescription of the meth
/ obs bv winch the warden NAV direct
/ the imposition OF corporal punishment,
I there IS necessarily quite a wide dis
/ cretiOn allowed him. | use the term
/ discretion, because Il VIII de-
/ scribe a. aptly rs any other term
7 the function wide discretion
IS allowed to h'm-lu determining and
/ fixing upon the kind OF corporal pun
ishmeut. He has quasi judicial power
n that particular. He must lu the eX-
erci~e of h.> duty, determine what puu-
shmeut ue wli prescribe. snort. how
I ever. uf the limitation or prohibition
Z which ls fixed by the statute. Now.
I then. "a may he fairly termed t. be- %
question within that Judgment whether
/ the strap which was used IN tins case
+ eas a lash. aud within the prohibition.
! It - necessarily left 10 the officer
/ lo determine whether It Is or not. II
/ ao exercises that judgment bo7q fts,
/ 30 may DEE shat even II he determines
.t err0noouslT, altogether eTr0neOuslv.
/ that BE Is not responsible m private
/ action. tt clear that the Legislature
intended that at these corporal punish
7 ment- lHe physician ot the institution
+ should te present and should -unern-
F tend them. Is Is, therefore, manifest
+ that II was supposed shat sufficiently
Z sever corporal punlsnments might take
place rs to make II necessary 20 have q
+ physician present o. sunerntcDd the
+ proceedings and t0IDtertcre Us u seemed
J e9 ho too severe or dangerous Nothing
+ IS clearer to mv mind than this. that q
\ ir. Wav. TD TINS case. supposed thar ae
i was prohibited from interfering w
T accordance with hls sense at duty.