Graham v. City of Carondelet

Bates, Judge, delivered the opinion of the court. There are two points in this case. First, was the forfeiture legally made ? and second, do the circumstances show a ground of equity for setting it aside ? As to the first point: The leases by the board of trustees of the Town of Carondelet to Bryan Mullanphy provided as follows : “And it is further covenanted and agreed by and between the parties aforesaid, that if at any time the rent aforesaid for six whole months shall be in arrear and unpaid, the said par [268] ties of the first part, or their successors iu office, may terminate this lease by order or resolution, to be entered on record among the acts and proceedings of the said board, and may enter and take possession of the demised premises free from any claim of the delinquent lessee, his executors, administrators or assigns.” The leases were dated in 1843, and were made in pursuance of a general ordinance, and contained the clause above quoted in pursuance of that ordinance. On March 1st, 1851, a new act of incorporation of “The City of Carondelet” was passed by the General Assembly, and it was thereby enacted that “ all property, real and personal, privileges and rights, hitherto belonging to the Town of Carondelet, or vested iu its trustees, shall be vested in the corporation hereby created.” By that act a city council was authorized, consisting of a mayor and board of council. The city council was required to keep a journal of its proceedings. The mayor (who is also the chief executive officer of the city) is required to preside at all meetings of the city council, and has therein a casting vote and no other. The sixth section of the sixth article provides that “ every bill which shall have been passed by the board of council, and every bill before it shall iiave effect as an ordinance, and every resolution before it shall have authority, shall be presented to the mayor for his examination and approval; and no bill or resolution, unless approved and signed by him, shall have any effect,” save in certain cases,” which do not include the present one. (Laws of 1851, p. 146.) On the 13th day of March, 1854, the city council of Carondelet, by a resolution, spread upon its journal, that is, entered among its acts and proceedings, annulled and terminated the leases on account of the non-payment of rent for six months. This resolution was not presented to the mayor and approved and signed by him, but he being president of the. council, signed the whole journal. The plaintiff contends [269] that the resolution is of no authority and ineffectual to terminate the leases. The first subject of inquiry is, what is the proper proceeding to terminate the lease ? The lease itself, being the contract of the parties, specifies the proceeding which is necessary, and that is by order or resolution, to be entered on record among the acts and proceedings of the said board. The entry on the record of a certain form of words is not sufficient, for it is an order or resolution which must be so entered, and by the new charter there can be no resolution until it is approved and signed by the mayor. It is necessary, then, in order to terminate the lease, that there must be a resolution, approved and signed by the mayor, (for this the charter requires,) and entered on record among the acts and proceedings of the board, (for this the lease requires.) The attempted forfeiture in this case is merely null and void. Eor the reason that the attempted forfeiture was merely a nullity, and in consequence no cloud upon the plaintiff’s title, judgment was properly rendered for the defendant. Judgment affirmed; Judges Bay and Dryden concur.