Opinion delivered July 21, 1873, by
By an act of assembly approved the 24th day of April, A. D. 1873, entitled “An act relating to the December Oil Company, and giving jurisdiction to the courts to settle and wind up the same,” if is provided that whenever it shall appear to the court of common pleas of the county in which such stockholders reside, upon either a petition or bill in equity, filed by any stockholder of the December Oil Company, that the said company is insolvent, or that the said company had ceased to do business, or that it had never engaged in business for the purpose for which said company was created, or that the officers and managers, or either, were misapplying the funds and property of said company, it shall be the duty of the court of common pleas to appoint one or more assignees to settle and wind up the affairs of the said company under and in pursuance of the laws relating to insolvent debtors of this commonwealth. The second section confers jurisdiction on the court of common pleas of any county where any of the stockholders may reside, and where a petition or bill in equity may be filed by any stockholder, and directs how the service of such petition or bill in equity may be made.
There is but one question presented for our decision at this stage of the proceedings, and that is, whether the act referred to is mandatory upon the court to appoint an assignee or assignees upon the filing of a bill, such as has been filed in this case, before the defendants are allowed the opportunity of answering or of being heard.
The exercise of this power will take from this corporation the possession and control of its property and effects, and vest them in' the trustee or trustees whom the court may appoint. To do this without investigation or a hearing, will be so far out of the usual course of legal proceedings that the court will not act from mere implication; the mandate must be expressed in clear and positive terms. As we understand and construe this legislation, it must first appear to the court that the company is insolvent, or that its officers are concealing its property or appropriating it to their own use, or mismanaging its business, before assignees can be appointed to wind up-its affairs. How appear? Just as any other matter in controversy is made to appear as the result of an investigation, in which all parties interested are heard.
Even where the legislature, in the exercise of its undisputed powers, repeal a charter in direct terms, the judicial tribunals presume that the reserved power of repeal was not exercised without the legislature being satisfied, after an impartial investigation of the facts, and an opportunity given to the defendants to be heard in their own defence, that the case had occurred upon which alone its interposition could be justifiable. Comth. v. Pittsburgh & Connellsville R. R. Co., 8 P. F. S., per Sharswood, J.
In this case there is no direct repeal of the charter of the December