
    Case of the Roman Catholic Society worshipping at the Church of St. Mary, in the city of Philadelphia.
    
      Monday, April 17.
    i this''0*" Court tor its proposed atterations and to the charter rated bodyP°" under the 2d the'act of made by the fnítsTorporáte character, and not by the individual mem-. ctety,°ftheS°"
    AN application having been made to this Court by a portion of the members ofthe Roman Catholic Society worship-P,no at St. Mary’s Church, to sanction certain alterations proposed to be made in their charter, which were opposed by other members, a hearing took place on the 16th of this month, As the case was opened by the counsel, it involved a variety of topics highly interesting in themselves, and rendered still more so by the unhappy disputes which have for some time bePrevailed in that congregation. The Court, however, having requested the counsel to confine themselves to a single point, nothing further will be here stated than is necessary properly tQ introduce it.
    By an act of assembly passed 13th September, 1788, the members of the religious society of Roman Catholics, inhabiting the city and county of Philadelphia, and belonging to the congregation worshipping at the church of St. Mary, were incorporated by the name, style, and title of The trustees of the Roman Catholic Society worshipping at the church of St. Mary’s in the city of PhiladelphiaThe trustees, by the name aforesaid, and their successors, to be elected in the manner prescribed by the act of incorporation, were to have perpetual succession, and were invested with all corporate powers. The second section of the act of incorporation named the three clergymen, who were then pastors of the church, and eight members of the congregation, as the first trustees, and. declared that the future trustees should consist of the pastors of the said church for the time being, duly appointed,, not exceeding three in number, and of eight lay members, whose election, on the Tuesday of Easter week in every year, by the members of the congregation holding pews, or parts of pews, and paying for them not less than fifteen shillings by the year, was provided for by the third section.
    From the minutes of the board of trustees, it appeared that on the 15th July, 1805, a committee was appointed to draft amendments to the charter, to be laid before the board at their next quarterly meeting. One of the members of the committee having died, his place was supplied on the 20th October, 1807, by a new appointment; and on the 30th of the following November, the committee reported certain amendments, which were agreed to, and ordered to be presented to the attorney general for his sanction. The signatures of the members of the congregation were, at the same time, directed to be procured, in order to carry the proposed amendments into effect. On the 9th November, 18C8, the same committee was continued, with instructions to petition the legislature for an amendment to their charter. On the 1st March, 1820, the committee reported a bill for this purpose, which was adopted by a considerable majority. On the 26th March, in the same year, notice was given by the secretary of the board of trustees to the congregation, to attend a meeting on the 28th of the same month, on business of importance. At the time appointed, the meeting took place, when it was resolved, that the committee already appointed for procuring an act of the legislature, should be continued; and they were required, in case of obtaining such an act, immediately to call a meeting of the congregation, by at least one week’s notice, in order to consider and adopt such alterations and amendments as to them might seem proper. An act of the legislature, authorising the charter to be amended, having been procured on the 20th March, 1821, the committee, on the 31st of the same month, called a meeting of the congregation to be held at the Washington Hall, on the 7th April, in order to decide upon such alterations as might appear to be expedient. Prior to this, viz: on the 5th April, 1820, an election for trustees took place, when only one of the members of the committee was elected into the new board. By the act of assembly just referred to, the society of St. Mary’s Church were authorised to improve, amend, and alter their charter “ in the same manner, and with the same privileges and powers, as corporations established by virtue of an act of assembly, passed the 10th day of April, in the year of our Lord 1791, entitled ‘an act to confer on certain associations of the citizens of this Commonwealth, the powers and immunities of corporations or bodies politic in law.’ ” The first section of the act of the 10th April, 1791, authorises any number of persons, citizens of this Commonwealth, who are desirous of associating for any literary, charitable, or religious purpose, and of acquiring the powers and immunities of a corporation, to prepare an instrument in writing, specifying'the objects, articles, conditions, and name, under which they desire to associate, which they are to exhibit to the attorney general, who is to transmit the same to the Supreme Court, with his opinion thereon endorsed, touching the lawfulness of the objects, articles, ahd conditions contained and set forth therein ; and if both the attorney general and the Supreme Court are of opinion, that the objects, &c. are lawful, it is to be sent to the governor, who is authorised to order it to bé recorded, upon which the persons associated, immediately become a corporation, to have, continuance by the name, style, and title in the said instrument declared. The second section provides, that as often as the corporations established by virtue of the 6aid act, and the successors thereof, respectively, shall be desirous of improving, amending, or altering the articles and conditions of the instrument upon which they are formed and established, it shall be lawful for such corporations, respectively, in like manner to specify the improvements, amendments and alterations which shall- be desired, and the same to exhibit and present to the attorney general and Supreme Court, who shall,' in like manner, certify their opinion to the governor, touching the lawfulness of such improvements, &c.; and the same being certified, as aforesaid, to be lawful, shall, in like manner be directed by the governor to be recorded, and upon recording thereof, shall be taken and deemed to be a part of the instrument upon which such corporations, respectively, were formed and established, as if the same had originally been a part thereof.
    A meeting of the congregation took place, agreeably to the notice, at the Washington Hall", when certain alterations and amendments to the charter, the principal objects of which were to exclude the clergy from the board of trustees, and to alter the time of holding elections, were proposed and adopted, according to the testimony of the chairman of the meeting, by a large majority; the minority manifesting their disapprobation in a disorderly manner. These alterations and amendments did not receive the sanction of the existing board of trustees, who, on the contrary, at a meeting on the 10th April, 1821, at which were present the three clerical, and four lay members of the board, protested against them as illegal,. unfair, and unconstitutional. .
    , The Court requested the counsel to speak first to the point, whether it was not necessary that the amendments should be proposed by the corporation, and not by the individual members of the church.
    
      J. R. Ingersoll, in support of the amendments.
    The trustees are to be governed by the act of 1788, which ■ confers no such rights as they now claim. If these pretended rights are recognised, they will tend to the subversion of the charter itself, and put it in the power of evil disposed men to perpetuate the existing evils. Though the trustees are necessary to conduct the temporal concerns of the society, and to give a name to the body, they do not constitute the corporation, which is composed of the members of the congregation at large, in whom all the interests of the body reside. Without the consent of the congregation, the trustees could not effect an alteration of the charter ; their acts, against the will of the society, would have no operation ; consequently, they cannot counteract an object which the body of the congregation wish to effect. The language of the act of 1788, designates the members as those who essentially compose the corporation. It is entitled, “an act to incorporate the-mm. hers of the religious society of Roman Catholics,” &c.; and the first section declares, that the members of the society are erected into a body politic. The act of 20th March, 1821, which was passed to meet the present exigency, authorises the members of this society to amend their charter in the manner provided for by the act of 10th April, 1791, and this act also contemplates the individuals who compose the society as constituting the corporation. The first section speaks of persons associating for literary, charitable, or religious purposes; and the second section provides for an application for amendments in like manner as the original application was made. As the original application was to be made by the members of the body at large, it necessarily follows that the amendments were to be applied for in the same manner. In no fewer than three instances do the legislature place an application for amendments on the same footing as an application for an original charter, thus restoring the members to the state in which they were before the charter, and giving them power • to re-model it as they please. An application for this purpose need not' be sanctioned by the corporate seal. Between strangers and themselves, their contracts must be exhibited by their common seal; but in a controversy between the different members of the same corporation, it is unnecessary ; their books and minutes are sufficient.
    If, however, an application for amendments must be the act oí the board of trustees, their sanction is not wanting. In the year 1805; a committee of the board was appointed expressly for the purpose of drafting amendments. In 1807, a draft of amendments was submitted to the board; and in 1820, the committee reported a bill on the subject. Thus the board of trustees originated the very matter in controversy; and after having exercised that power to a certain extent, they delegate it to the congregation, whom they call together for the purpose of considering the amendments, and by whom the committee originally appointed by the trustees, are continued. This committee, therefore, were the agents both of the congregation and the trustees, and, in procuring the act of 1821, and proposing the contemplated alterations, they acted under the sanction of all the authorities known to the corporation.
    
      Keating and Kittera, contra.
    This Court can receive no application for alterations of the charter of St. Mary’s Church which does not proceed from the corporation, attested by their common seal. This corporation is composed of the trustees, duly appointed and elected, who are the organ through whom alone the church can speak. The incidents to a corporation are succession and a common seal. The members of the religious society worshipping at St. Mary’s Church have, by the act of 1788, no succession. The corporate powers, and the right of succession, are given to the trustees, some of whom, the members who possess certain qualifications, are entitled to elect. The original charter was granted to the members of the society then residing in the city of Philadelphia and its vicinity, but not to their successors. The present members are not those to whom the charter was given, and if they possess the power contended for, they may destroy every corporate right guaranteed by the charter. According to that instrument it is necessary to hold a pew, and pay at least fifteen shillings a year, to entitle a member to vote; but these qualifications may be taken away with as much facility as the clergy can be deprived of a seat at the board of trustees, which is the leading object of the proposed alterations. The act of 1821, did not contemplate a dissolution and renovation of the body politic. Its objects were amendments and alterations, which are incompatible with the idea of total destruction. These amendments and alterations are to be obtained in the manner pointed out by the act of 1791, which, although it authorises individuals,' associating together for certain purposes, to be incorporated, yet, when speaking of amendments, it uses a different language, and declares that jthey' shall be granted upon the application of the corporation, which can be made only through the medium of the corporate seal. lKyd on Corp. 267. Taylor v. Dubrick Hospital, 1 P. Wm. 655. 2 Bac. Ab. 9. (Wils. ed.) 1 Tern. 117. Wick v. Meal, 3 P. Wm. 310. 6 Fin. 267. 1 Bl. Com. 473.
    
    The idea that the board of trustees have sanctioned the present proceeding, is altogether erroneous. They have never acted in the business. The powers of the committee appointed in February, 1820, expired with the board who constituted them, and two of the three were not even elected members of the new board. These alterations were never submitted to the corporation, who, so far from having given them their sanction, have positively protested against them.
   The opinion of the Court was delivered by

Tilghman J.

An application has been made to this Court, to sanction certain alterations proposed to be made in the charter, granted by an act of the general assembly, on the 13th day of September, in the year 1788, to the members of the religious society of Roman Catholics belonging to the congregation of St. Mary's Church, in the city of Philadelphia. The charter itself contains no provision for alterations, but, by an act of assembly, passed the 20th day of March last, this society were authorised to improve, amend, and alter the charter granted to them by the aforesaid act of incorporation, “in the same manner, and with the same privileges and powers as corporations established by virtue of an act of assembly, passed the 10th day of April, in the year of our Lord 1791, entitled, “ An Act to confer on certain associations of the citizens of this Com" monwealth, the powers and immunities of corporations or bodies politic in law.” The mode' of altering this charter must therefore be sought for, in the act of 10th April, 1791 „ But before I consider that act, it will be necessary to remark, that the Roman Catholic Society were incorporated by the name, style, and title, of “ The Trustees of the Roman Catholic Society, worshipping at the church of St. Mary’s in the city of Philadelphia’’ and the said trustees, by the name aforesaid, and their successors, to be elected in the manner prescribed by the said act of incorporation, were to have perpetual succession, and all corporate powers were vested in them. I.et us now examine the act of 10th April, 1791. In the first place it authorises any number of persons, citizens of this Commonwealth, who are desirous of associating for any literary, charitable, or religious purpose, and of acquiring the powers and privileges of a corporation, to prepare an instrument in writing, specifying the objects, articles, conditions and name, under which they desire to associate. This instrument is to be exhibited to the attorney general, who is to transmit the same to the Supreme Court, with his opinion thereon indorsed, touching the lawfulness of the objects, articles and conditions contained, and set forth therein ; and if both the attorney general and the Supreme Court are of opinion, that the objects, &c. are lawful, it is to be sent to the governor, who is authorised to order it to be recorded, and upon its being recorded, the persons so associated immediately become a corporation, to have continuance by the name, style, and title in the said instrument declared. By the 2d section it is provided,that as often as the corporations established by virtue of the said act, and the successors thereof, respectively, shall be desirous of improving, amending, or altering the articles and conditions of the instrument upon which they are formed and established, it shall be lawful for such corporations, respectively, in like manner, to specify the improvements, amendments, and alterations which shall be desired, and the same to exhibit and present to the attorney general, and Supreme Court, who shall, in like manner, certify their opinions to the governor, touching the lawfulness of such improvements, &c., and the same being certified as aforesaid, shall, in like manner, be directed by the governor to be recorded, and upon recording thereof* shall be taken and deemed to be a part of the instrument upon which such corporations, respectively, were formed and established, as if the same had originally been a part thereof.

Some of the members of St. Mary's church have appeared before us, and objected to the proposed amendments, and their counsel contend, that it is not a case in which the Court is required to express its opinion by the act of 10th April, 1791, because no alteration has been proposed by the corporation, but only by individuals of the society; on the contrary, that the trustees have protested against the proceedings of these individuals, as illegal and unconstitutional. This objection must be considered ; for, if well founded, the Court can proceed no further. In this- business of charters, the' Court acts under the grant of an extraordinary power, of a special nature, and confined to the cases described in the act of assembly. On adverting to the act it will be found, that there is a different mode of expression in the first section, which points out the manner of obtaining the charter, and the second which provides for the alteration. In the former, the application is to be made by the individual citizens, who desire to be incorporated ; in the latter, by the corporation. There was good reason for this difference. Although the individuals who apply for a charter, are said to be incorporated, yet after incorporation, they are -not known as individuals; they have no legal existence but as a corporate body. How that corporate body shall be organised, is expressed in the instrument of incorporation. In this of St. Mary's, it consists of the pastors of the church, (not exceeding three,) and eight lay members, elected annually, on the Tuesday of Easter week, by the members of the church, holding a pew, or part of a pew, and paying for the same not less than fifteen shillings a year. In those trustees are vested all the property, and all the powers and privileges of the corporation ; or, to speak more properly, they, and they only, are the corporation. Their existence is perpetuated by annual elections ; so that the corporation is undying and unchangeable, while the individuals who transact its business are subject to death and change. The security of the congregation against the misbehaviour of their trustees, lies in their power of removing them at the annual election, besides the punishment which may be inflicted by law. It is not to be feared, therefore, that the desire of. the congregation to alter their charter, should be frustrated by their trustees, for any great length of time. If we regard the words of the act of assembly, the application for an alteration, is to come from the corporation. And if we consider the convenience of the thing, we shall find strong reasons for not departing from the words. Where the application is from the corporation, the Court is under no uncertainty. The 'whole body speaks with one voice. But if individuals come forward, and ask for an alteration, how is this Court to know if it be really the desire of the congregation ? Will a large majority be sufficient ? The act of assembly is silent. Must there be a majority of the members of the church, or only of those who hold pews or seats ? Of how many members does the congregation consist? Are the applicants really members of the society? Are we to inquire into all these things ? And in case of contested facts, are we to decide, or must they be tried by jury ? This Court sits in five districts, but can try issues in fact, only in the county of Philadelphia. The-act of assembly contemplates no difficulties of this kind ; no questions of fact are supposed. We are required to give ouropinion whether the proposed alterations be lawful, and that is all. But even this, we are not to do, until the attorney general has certified his opinion. And how is he to act in case of disputed facts ? Most certainly he can make no inquiry into them. Our attention has never been drawn particularly to this point before. There have been many alterations of charters, but none on which, so far' as came to our knowledge, the alterations were not desired both by the corporation, strictly speaking, and the individual members who composed the society at large. But suppose the corporation should abuse their trust, by proposing alterations not desired by the society: Are eight or ten persons to domineer, over a thousand? Such absurd and vicious conduct is hardly to be supposed. I h^ve no hesitation, however, in saying, that the corporation wbuld act extremely ill, if they came before this Court with an alteration, to which the assent of the society had not been obtained; and although I shall not commit myself by an opinion on a case not before us, yet the present strong inclination of my mind is, that on affidavits making such facts to appear, a remedy might be found, by which the rights of the society would be protected. We have been pressed to consider the alterations in this charter, by intimations of alarming emergencies, if the congregation of St. Mary’s proceed to an election of trustees, in the present ferment of their minds. This Court has no right to yield to apprehensions of that kind. It must administer justice impartially, without regard to consequences. But in truth, I cannot bring myself to think, that there is danger of any serious disturbance. I cannot believe that the religious congregation of St. Mary’s will be so forgetful of their duty to God, and their country, as to make the election ground a scene of riot and bloodshed. But the counsel in favour of the amendments, has averred, that they have not been proposed without the concurrence of the trustees. It appears from the minutes of the corporation, that the subject of amendments has been many years under consideration, and committees have been appointed from time to time, to attend to it. But it is certain, that the corporation is no party to the piesent application; so far froth it', a formal protest has been very lately entered on their minutes. I forbear from saying any thing concerning the nature of the amendments, or the manner in which they were obtained; because we have only heard the evidence on one side. On both sides, however, we see gentlemen of good character, and have no- reason to question the motives of either. As the case stands before us, I take it, that the application for the alteration of the charter, is not only without the consent of the corporation, but absolutely against it, and under such circumstances, I think the Judges ought not tQ certify their opinion, touching the lawfulness of the proposed alterations.  