Wellersburg & West Newton Plank Road Co. v. Bruce

Mason, J.,

delivered the opinion of this court.

In proving his case, a plaintiff is not confined to any particular order in which to offer his evidence. If the evidence be legal and material to the issue, it should be received by the court without reference to the order in which it is introduced. Ca ton vs. Carter, 9 Gill & Johns., 476. But if on the other hand testimony is offered which has no tendency to prove the issue in the case, it is error to permit it to go to the jury: and where legal testimony has been received, but which turns out to be so light and inconclusive that no rational mind can infer from it the fact which it is offered to establish, or where there is an entire failure of evidence upon any one material fact involved in the issue, it is the duty of the court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant them in finding the fact thus attempted to be proved. Clarke vs. Marriott, 9 Gill, 331 . Maslin vs. Thomas, 8 Gill, 18 . Hatton vs. McClish, ante, 407.

Upon these general principles depends the question involved in the first exception. That the testimony, the subscription list, which was rejected, was legal and competent, there can be no doubt. It was as essential to the plaintiff’s right to recover, that they should prove the defendant’s promise to pay, as it was to establish their own corporate existence, and it was for the plaintiffs to determine which of these facts should be first established. There was no authority in the court to require, as a condition upon which this evidence was to be received, that the plaintiffs should disclose in advance what other proof they intended to offer, and the rejection of the *465 evidence on that account was therefore erroneous. The legal sufficiency however of this evidence to establish the whole case is quite a different question. The issue was made up of two substantive propositions, both of which the plaintiffs were obliged to prove before they could recover; one was their own corporate existence, and the other was the promise, implied or expressed, of the defendant to pay his subscription; and should the plaintiffs only establish one of those propositions, but entirely fail to prove the other, there would be virtually and practically such a failure of evidence as to defeat their ease. These questions however cannot arise upon the admissibility of evidence, but must be presented by prayers after the evidence has been closed.

The second exception presents virtually the same question, and was therefore for the same reasons erroneous.

The third exception presenting the question of the propriety of the ruling of the court in granting the defendants* prayer, which was, that the plaintiffs’ had not sufficiently shown their corporate existence to entitle them to recover, need not, the court think, be commented upon or decided, upon this appeal. The judgment being reversed upon other exceptions, and the cause remanded, this question becomes immaterial, in the opinion of the majority of the court, because upon a second trial, the supposed defects in the plain-'. tiffs’’ chain of proof, can be easily supplied.

It is my individual opinion we are bound also to decide the third exception in this recordfor if the evidence offered by the plaintiffs was defective in not sufficiently showing their corporate existence, the judgment ought to be affirmed, notwithstanding the error of the ruling of the court in the 1st and 2nd exceptions. These errors would therefore become' wholly immaterial, for even though the rejected evidence had been admitted, it would not have varied the result, assuming that the corporate existence of the plaintiffs was not sufficiently established. The case should be decided upon the record as it is before us, and we have no power to reverse a judgment upon an immaterial point, merely for the purpose *466 of granting either party a new trial, and upon the supposition that new and better testimony might be offered. 7 Har. Johns., 147. 4 Gill & Johns., 273. 9 Gill & Johns., 439. 9 Gill, 1, 56, 156 .

I concurred however in the reversal of this judgment, because I believed there was error also in the ruling of the circuit court upon the third exception, and that upon the case as made in the record, the plaintiffs were entitled to recover, if the jury believed, their evidence.

The evidence on this point consisted, in part, of an act of the legislature of Pennsylvania, entitled “An act regulating Turnpike and Plank Road Companies.” By the 2nd section, it was made “lawful for the governor by letters patent,. &c., to create the subscribers into one body politic,” &c. By the 12th section it was further provided, that after five miles of the road was finished, and examined and approved, &c., the governor shall issue a license to permit the company to erect gates upon the road, &c. There was also offered in proof a license issued by the governor under and by virtue of that section, authorising the toll gates to be erected; but there was no express evidence that the patent, as provided for in the second section, was ever granted by the governor, and on that account the proof is supposed to be radically defective,, and for this position the case of Agnew vs. Bank of Gettysburg, 2 Har. & Gill, 478, is relied on. In that case, the charter from the governor of Pennsylvania, incorporating the bank was produced, but the act of the legislature authorising or requiring the charter from the governor, was not given in evidence, and the court there said, that that comity which should exist between one sovereign State and another, should raise the presumption, until the contrary be shown, that the public acts of the chief magistrate of the State, purporting to be in execution of the laws, were legitimate acts, and within the scope of his powers 'as such officer.

In the present case I cannot perceive why the same comity should not require us to presume, that the license granted by the governor, purporting to be in pursuance of the law, was *467 a regular exercise of power, and further to presume from it, that the patent had duly and regularly preceded it. In the ease of Agnew vs. The Bank, the existence of the act of the legislature was presumed, because of the charter which purported to be granted under and by virtue of it, and we are asked in this case to presume the granting of the patent, because of the issuing of the license, which purported to be in pursuance of the patent required by the law. In the one case, without an act of the legislature, the charter would have been wholly inoperative and void, and in the other, without the patent, the license would be equally unauthorised and unavailing, and if we are warranted in the first case, in assuming the existence of the act of the legislature to support the charter, why not in the second, assume the existence of a patent to support or authorise the license?

The act of the Pennsylvania legislature, which is before us, provides that “it shall and may be lawful for the governor to grant the letters patent,” &c. This being an act of a public nature, we must regard this language as mandatory upon the governor, upon the prerequisites of the law being complied with, and not merely investing him with power to grant or withhold the patent in his discretion. In the case of the Newburgh Turnpike Company, vs. Miller, 5 Johns. Ch. Rep., 113 , Chancellor Kent says, “The principle to be deduced from the cases is, that whenever an act to be done under a statute, is to be done by a public officer, and concerns the public interest, or the rights of third persons, which require the performance of the act, then it becomes a public duty in the officer to do it.” To assume then that the governor in this case had not granted the letters patent, upon being required to do so by the performance of the previous conditions, would be to assume he had disregarded the obligations imposed upon him by the laws of his State; or to assume that the duty had been irregularly or defectively discharged, would be equally unwarrantable and against the comity which should exist among sister States.

But it may be asked, how are we to know without the pat *468 ent, whether the conditions and prerequisites upon which the letters patent w.ere to depend, have been complied with ? We think the license affords the evidence. If the governor has issued this license without the authority which the patent affords, it would be a gross dereliction of duty, and to avoid such a presumption, we must assume the patent to have regularly and in due course of law preceded the license.

Judgment reversed and pr/ocedmdo awarded,