Mihlbauer v. Infantry Corps of State Fencibles , 205 Pa. 180 ( 1903 )

Opinion by

Mb. Justice Fell,

The bill in this case was filed by the 'captains of four companies that now constitute the third battalion of the Sixth Regiment, National Guards of Pennsylvania, to establish the right of the battalion to the exclusive possession of an armory leased by .the city of Philadelphia. The lease was made in 1884 to “the Infantry Corps of State Fencibles, National Guard of Pennsylvania, a body corporate of the state of Pennsylvania.” The corporation was chartered in 1876 for the purpose of aiding and benefiting its members, of securing their proficiency in military science, and for social enjoyment. Most of its members were members also of an independent military company which was originally formed in 1813, but all of them were not. Three additional companies were recruited in 1878, and a battalion formed which was known as the Infantry Battalion of State Fencibles. From that time the management of the civil and military bodies was practically in the same hands and the word “ battalion ” was substituted for “ corps ” in speaking of the corporation. The finding of fact is that “ there was not only a confusión of the names of the two bodies, but a confounding of their identity, so that the field, staff, noncommissioned staff, and company officers of the military body, under the designation of Board of Officers of the State Fencibles Battalion, assumed to act as the corporate body, enacted bylaws, elected officers, held meetings and generally conducted the business of the corporation.” As the memberships and interests of the two bodies were nearly identical, there was no occasion to distinguish them until in 1900, when the four companies were assigned to the Sixth Regiment. The order assigning these companies did not include the commanding officer of the battalion and his staff. These officers, with some of the company officers who resigned after the transfer, formed new companies, and thus there became two bodies with antagonistic interests each claiming the right of possession of the armory.

The ordinance of councils authorizing the lease was passed in 1883, at which time the civil and military bodies were both known as the battalion. It directed a lease to be made to “ the Infantry Battalion of State Fencibles, National Guard of Pennsylvania.” The lease was in fact made to “the Infantry Corps of State Fencibles of the National Guard of Pennsylvania, a body corporate of the state of Pennsylvania.” Apparently this change was made by the city solicitor when he drew the lease. The lease was executed on the part of the lessee by the president and secretary of the corporation, and was sealed with the corporate seal. These officers were also officers of the battalion, but they executed the lease in their official capacity as officers of the corporation, thus clearly drawing the distinction between the two bodies and designating the one which was to become the lessee. The city for eighteen years has recognized the validity of the lease, and on application has refused to terminate it, and to authorize a new lease to the four companies. These facts and others established at the hearing fully sustain the finding by the court that the intention was to lease to the incorporated civil body, and not the unincorporated military body. This finding is conclusive of the rights of the parties.

The decree is affirmed at the cost of the appellant.