The opinion of the Court was delivered by
Sergeant, J.The language of the eighth section of the act of the 15th of September, 1784, is as follows: “Nor shall the constitution of the said school hereby established, be over altered or alterable, by any by-law or ordinance of the said trustees, or in any *other manner than by an act of the legislature this state.” The obvious and construction of these words, is to reserve to the legislature the power to alter the constitution of the school, and that without the consent of the corporators. Every other authority to alter is prohibited. No by-laAv or ordinance of the corporation can do it; nor can it be done in any other manner : but the constitution is not to remain forever unalterable, since circumstances might occur to render it expedient to change it. Who then is to do it ? No other than the legislature by an act of assembly. They may do it: and they alone are empowered to do it. It is said, that although the legislature may make an alteration, yet it cannot be without the consent of the corporatorsand many Aveighty arguments have been urged Avhy the consent of the corporators ought to be an indispensable ingredient in the power of alteration. It is sufficient to say, that if the act of assembly had intended to make such consent requisite, it Ayas easy to insert the words “by and with the consent of the corporation,” or something equivalent. This has not been done; and I do not think we can insert them, on the ground that it would have been right or expedient to do so, even supposing we were satisfied of that position. Certainly the legislature, in a grant of corporate rights and privileges, may reserve the right to alter, annul, or amend them, either generally, or on certain terms and conditions; and Avhen that makes a part of the compact between the legislature and the corporators, the latter cannot object to the exercise of a power thus expressly reserved — provided, where, in any case, terms or conditions of alteration are appended, the case contemplated has arisen. Hero the power reserved is general and unconditional, and may be exercised whenever the legislature deems it expedient to do so.
If the whole frame and context of the act of 1784 is looked at, and especially the preamble, strong reason exists for believing that the founders of this school and the legislature contemplated *567the plan then adopted respecting it, as only a temporary, or at least, unsettled scheme, and looked to some future period when it would be expedient for the legislature to modify or change it. The act is entitled an act to establish and incorporate a public school. The preamble recites, “that whereas, by the forty-fourth section of the frame of government of this commonwealth it is ordained, that a school or schools shall be established in each county by the legislature for the convenient instruction of youth, with such salaries to the masters, paid by the public, as shall enable them to instruct youth at low prices; and whereas divers of the inhabitants of Germantown have by petition to this house represented, that the situation of the place, the large and commodious buildings already erected, and divers other circumstances render it a proper place to establish a school agreeable to the said provision in the frame of government, &c.; and whereas the finances of this state, so soon -after a long *and expensive war are not in a condition (without an increase of taxes already heavy,) to carry into execution immediately the design of the said section, by establishing schools at the public expense in all the counties of this state, but it is nevertheless highly proper to promote the laudable attempt of the petitioners by every reasonable encouragement, until something further can be done by the legislature in a more extensive way.”
This seems to contemplate a future action in respect to this school, when the finances of the state would permit the legislature to establish a system of public schools, to be supported by the state; and in the meantime, that the founders of this school might go on under the incorporation, and with their own funds and contributions conduct the school in the buildings that had been previously erected. No donation is given to it by the state; the reason assigned being the low state of its finances, in consequence of the war, though the request of the petitioners seems to have been to establish a school, agreeably to the provision in the frame of government, — a public school — probably a school to which the legislature should grant some endowment under that provision. As the legislature were not able to do this, a middle course seems to have been struck out; it is incorporated as a public school; the corporators are allowed to carry it on as such; privileges and franchises are conferred; but it is prohibited from making of itself any change or alteration, either by its own intrinsic authority, or in any other manner: yet as at a future day' a general and uniform system of public schools would probably be adopted, in pursuance of the injunctions of the constitution, which might require a modification or change of the charter of this school, such change may be made by the authority of the legislature: and with this intention and *568design, as recited in tbe preamble, the language of the eighth section conforms.
We are therefore of opinion, that the change in the terms and conditions of this charter, made by the act of the 31st March, 1837, by which the qualification of the electors required by the act of 1784 is repealed, and the right of voting is extended to all citizens residing within the limits of the township of German-town, (as afterwards defined,) qualified to vote for county or state officers, was constitutionally made under the power reserved in the eighth section of the original act. It follows that the defendants claiming as trustees, by virtue of an election by the contributors held on the first Monday in May, 1837, under the original act and its supplement, have no title as such trustees, not being elected in the manner and by the persons prescribed in the act of 1837. What further may be the effect of the fact agreed upon, that this act of assembly was never accepted or assented to by the corporation, or the trustees or founders of the school, or a majority of the contributors, so far as respects the property of the corporation, we give no opinion. The only ^ question on the present proceeding is, as to the right of exercising Uanc^ises a’M privileges belonging to the office of trustees conferred by the charter; and the opinion we give is as to that.
Judgment of ouster.
Cited by Counsel, 6 Barr, 89; 2 Casey, 298.
Cited by Lewis, C. J., dissenting, 1 Grant, 277.