Commonwealth v. O'Donnell , 1 Brightly 111 ( 1847 )

The court declined hearing W. M. Meredith, in reply; and the following opinion, on the issues of law, was delivered by

Gibson, C. J.

— If the question stood on the act of 1791, I should hold the charter to be invalid. The efforts of the commonwealth have been mainly directed to show that the original corporators were not citizens of Pennsylvania, within the intent, of the statute. Probably they were not, but the charter was, in any event, forfeited, by reason that the succession had not been regularly kept up. The congregation conceded this, when, in 1832, it procured a statute to fill up the gap. The legislature not only enacted it, but authorized the survivor of the original corporators to elect and join to himself two or more permanent corporators, possessing the qualifications required by the charter. This gave the corporation a new status, and operated as a confirmation of it, at least from that time. The replications do not deny that the succession has since been regularly kept up, by filling the vacancies with citizens of Pennsylvania. If, then, the legislature had competent power to enact the statute, the corporation is a valid one, and the predecessors of the respondents were legally chosen permanent corporators, in 1832; Mr. Hurley being appointed by the legislature itself. It is immaterial how invalid the charter had previously been, for the respondents do not rely on it, and recourse has been had to it only as matter of inducement. Do any of the replications answer the whole plea? None, unless the legislature had not power to enact the statute of confirmation. I am not aware of any constitutional objection to it. The legislature may certainly incorporate foreigners, notwithstanding their adverse allegiance. And it might have dispensed with the qualification of citizenship in the amended charter: but it did not. Now, the inclination of my mind is, that the existence of adverse allegiance goes, not to the power of the legislature, but to the propriety of its exercise. I would not, in an inferior court, declare the statute to be invalid. As the replications do not answer the pleas, the demurrers are sustained, and judgment is rendered for the respondents.

Subsequently, the prothonotary, by direction of the complainant, entered a discontinuance, which the respondents treated as a nullity, and the case was placed on the trial list, for September term, 1847. When reached, Mr. Horn R. Kneass, for the complainant, stated that the case had been settled and discontinued, and objected to going to trial. Mr. Stokes, for the respondents, denied the right of the complainant to discontinue, without the consent of the opposite party, after judgment for them on demurrer; and asked for a trial of the issues of fact by a jury.

Rogers, J.

— Ruled, that the discontinuance was void; and the case then went on, and a verdict was rendered, on all the issues of fact, in favour of the respondents.^*

* A discontinuance can only be entered by leave of the court; in England, this leave is obtained on motion, in the first instance; and here it is taken without the formality of an application, but subject to be withdrawn on cause shown for it; that is the whole difference: the act, when the propriety of it is contested, must, in the one shape or in the other, have the sanction of the court. Schuylkill Bank v. Macalester, 6 W. & S. 149.