City of Carondelet v. Wolfert

Fags, Judge, delivered the opinion of the court. , The only matter presented for the determination of the court is, whether the case as presented by the record comes within the principles settled by the cases heretofore decided. It is claimed on the part of the appellant, that a distinction should be taken between this and the former adjudged cases, for the reason that the forfeiture of the lease claimed to have been taken by the city council in this instance was in pursuance of the provisions of the charter of Carondelet granted by the Legislature on the 16th day of January, A. D. 1860. In the cases heretofore decided, viz., Taylor v. City of Carondelet, 22 Mo. 105; City of Carondelet v. Lannan, 26 Mo. 461, and Huth’s Adm’r v. City of Carondelet, 26 Mo. 466, the forfeitures were taken under the charter of 1851. In the 6th section of the act just recited (Sess. Acts 1851, p. 146), it is provided that “every bill, before it shall have 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,” &c. In the cases above referred to, as well as to the additional case of Graham v. City of Carondelet, 33 Mo. 262, the general principle seems to have been recognized, that the city council and mayor together constitute the law-making power of the corporation ; that the act of taking or declaring a forfeiture under the different leases which existed in those cases was a legislative act, and required the concurrence of both the legislative and executive departments (so to speak) of the city; and when so taken and declared, was a legisla [312] tive forfeiture, against which the courts of the State could not relieve. This court with the single exception of the case of Taylor v. City of Carondelet, has unanimously concurred in the settlement of all the questions arising upon these leases in the manner above indicated. We think that sound policy requires that a settlement made upon so many -repeated adjudications of the same subject matter should not now be disturbed. It remains, then, to determine whether this case can be brought within the principles decided in these cases. Section 6 of art. vii. of the act of 1860 (Sess. Acts 1859-60, p. 317) provides that “ every bill which shall have been passed by the city council shall, before it becomes a law, be presented to the mayor for his approbation; if he approves the bill, he shall sign it; if not, he shall return it with his objections in writing,” &c. Sec. 8, same article, says, “No ordinance shall be enacted except by bill.” The difference between the act of 1860 and that of 1851 consists mainly in dropping the word “resolution” in the former act; and using simply the word “ bill.” This constitutes the only claim made by the appellant (so far as we can see) that the two acts referred to are essentially different in their characters. The charter of 1860 seems to have been intended as a sort of new garment adapted to the increasing dimensions of the City of Carondelet; and all acts of the corporation as expressed through the law-making power were more nearly assimilated to the regular forms of legislation which govern legislative bodies of a higher character. The will of the council is to be expressed in the form of a bill duly considered and passed. The concurrence of the mayor, who constitutes a distinct department of the government, must be separately expressed; and every ordinance, according to the terms of the charter, must pass through these forms to become valid and effective. We conclude, therefore, that the act of the city government, in proceeding to take a forfeiture of the lease in question, is to be understood as a legislative or quasi-legislative act, and must conform to all [313] the requirements of the charter to give it any force or validity whatever. The testimony shows that the attempted forfeiture in this case consisted in the passage of a resolution by the council declaring the fact; that immediately thereafter the witness Chartrand, acting as the agent of the respondent, tendered to the city collector, who was then present at the meeting of the city council, a warrant of the said city for the sum of |45 in payment of the rent in arrear upon the property in question; that the amount of the warrant was much larger than the amount of rent due, and that no change was demanded of the officer to whom the tender was made. It was further shown by the city ordinances that such warrants were made receivable for all dues to the city. Now, admitting that the simple resolution of the council was sufficient for the purpose intended, still it cannot be said to have been completed, for the reason that the charter required the proceedings of each meeting of the board to be signed by the mayor; and the covenant in the lease required that the “order or resolution” by which the forfeiture was to be declared should be “ entered on record among the acts and proceedings of the said board,” &c. So that, in whatever light this transaction is to be regarded, the attempt on the part of the city to declare a forfeiture should be treated as a mere nullity. The judgment of the court below will therefore be affirmed, the other judges concurring.