Soott, Judge
delivered the opinion of the court.
In considering the question presented by this record, we must bear in mind that the respondent, the city of Carondelet, is a public municipal corporation. The power of the general assembly of this state to create such bodies is unquestioned, and the expediency of its exercise is admitted on all hands. The corporations thus established, have, within the sphere of their delegated powers, as absolute control as the general assembly would have, did it retain the delegated powers, and exercise them by its own latvs. The act of the 6th February, 1839, [111]*111empowered the trustees of the town of Carondelet and their successors, to grant leases of their commons, and they were endowed with the power and authority necessary to carry into effect the object of the act. This delegation of power substituted the trustees of the town of Carondelet for the general assembly, and, to the extent of the pow'er delegated, vested them with the right to exercise that authority as effectually as it might have been exerted by the legislative power of the state. Prior to the execution, by the trustees of the town, of the lease of the commons which gave rise to this controversy, an ordinance was passed dated the 12th day of January, 1845, which contained this requirement: “ The leases shall contain a piovision to the following effect, viz : 'That, should the rent reserved as aforesaid, or any part thereof, on any lease, remain unpaid for six months after the same shall become due, the board of trustees may, by resolution, declare such lease terminated and void, and the same shall expire and be determined from that day.” The lease in controversy was made in pursuance to the terms of this ordinance. The corporation, in its political capacity, having required the insertion of the clause of forfeiture, it is as though it had been done by the legislature. Had the board of trustees, of their mere volition, leased their lands as any other proprietor might have done in the exercise of his ownership, the principle on which the plaintiff seeks relief might obtain. In such case, there might be no difference between the corporation and .any private individual, and courts might exercise their equitable jurisdiction in suitable cases, in relieving against forfeitures as freely against the one as the othej;. The corporation having legislative power over the subject, the insertion of the clause of forfeiture, deriving its existence from legislation, is no violation of the law of the land, though it may be absolute ; for it is a principle, that a clause of forfeiture in a law is to be construed differently from a similar clause in a contract or engagement between individuals. A legislature can impose it as a punishment, but individuals can only make it a matter of contract. (3 Howard, II) Prom the view we [112]*112take of the subject, the clause of forfeiture was as binding on the lessee as though it had been enacted by the general assembly. The legislature delegated its judicial powers over the matter to the corporation, and the corporation, within the sphere of its delegated power, could act as authoritatively in relation to it as the legislature. The law-making power, in fact, made the board of trustees a miniature general gssembly, and gave their ordinances, on this subject, the force of laws passed by the legislature of the state. In giving the corporation legislative powers on the subject of leases, the general assembly must ■have necessarily intended that its ordinances should operate as laws and not as contracts. The state of things presented by this record, shows the necessity for the power exercised by the corporation. If the common-law requisites to enforce a forfeiture were made necessary, no body would collect the rents for them. The amount due from each would be so small, and the tenants so numerous, that the rents would not defray the expenses of agencies. The principle that a corporation can not-impose a forfeiture without express authority in its charter for that purpose, does not affect this controversy. Such principle seems only applicable to by-laws creating offences. Such bylaws, without the sanction of usage, or of an act of the legislature, can not create a forfeiture, to be levied by distress or sale of goods for their violation. (Kirk v. Nowil, 1 T. R. 118; Adley v. Reeves, 2 M. & Sel. 60.) They may impose a forfeiture for a violation of a by-law, but it can only be collected by an action of debt, unless the distress and sale are given. (Clark v. Tacket, 2 Ventris, 183.) This is the meaning of the saying, that a corporation can not impose a forfeiture without express authority.
Judge Ryland concurring, the judgment will be affirmed.
Leonard, J.
I do not concur in the opinion of the majority of the court. Here is a lease reserving a money rent, the payment of which the parties have secured by a provision in it to the effect that the lease shall cease upon the rents being six [113]*113months in arrears, accompanied by a formal resolution of the" board declaring the forfeiture ; and the present application is for relief against this forfeiture.
. Penalties are a common expedient, resorted to everywhere, to secure the performance of contracts, and are found annexed both to obligations for the payment of'money, and'also to obligations for the doing or forbearing of other acts. And it would seem that, in all civilized communities, it has been found necessary to lodge in some tribunal a power to mitigate them and reduce them to the actual or probable amount of the damage the party has sustained. (1 Bell’s Com. Laws of Scotland, 656; 1 Pothier on Oblig. by Evans, 345.) In English jurisprudence this relief is afforded in equity, and the ground upon which it is there placed is, in the language of the chancellor, in Peachy v. Duke of Somerset, (1 Strange, 447, and 2 White’s Lead. Cases in Equity, 448,) ££ from the original intent of the case, where the penalty is designed only to secure the money, and the court gives all that the party expected or desired.” Accordingly, from an early period, equity relieved at any indefinite time against forfeitures incurred by the nonpayment of rent, upon "the payment of principal, interest and costs, and this equity was recognized' and regulated by the English legislature in the 4 Geo. ch. 28, and also by our own legislature, in a similar provision, to be found in the 20th section of the act concerning ££ Landlord and Tenant.” To entitle the tenant to relief, he is not bound to account for his omission to pay at the appointed time, nor is he required to show any equitable circumstance giving him a title to -the interference of the' court, and we therefore can not withhold the relief here unless the present can be distinguished from ordinary cases of this kind.
It is to be remarked that the principle on this subject, applicable to cases of contract between party and party, is not applicable to penalties and forfeitures given by the statute or to conditions in law, and.in the early case of Peachy against the . Duke of Somerset, already referred to, the chancellor remarked' [114]*114that “ cases of agreement and conditions of the party and of the taio are certainly to be distinguished,” and on this ground he denied relief to a copy-holder, who had incurred a forfeiture of his copy-hold by making leases, &e., contrary to the eustona of the manor.
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Soott, Judge
delivered the opinion of the court.
In considering the question presented by this record, we must bear in mind that the respondent, the city of Carondelet, is a public municipal corporation. The power of the general assembly of this state to create such bodies is unquestioned, and the expediency of its exercise is admitted on all hands. The corporations thus established, have, within the sphere of their delegated powers, as absolute control as the general assembly would have, did it retain the delegated powers, and exercise them by its own latvs. The act of the 6th February, 1839, [111]*111empowered the trustees of the town of Carondelet and their successors, to grant leases of their commons, and they were endowed with the power and authority necessary to carry into effect the object of the act. This delegation of power substituted the trustees of the town of Carondelet for the general assembly, and, to the extent of the pow'er delegated, vested them with the right to exercise that authority as effectually as it might have been exerted by the legislative power of the state. Prior to the execution, by the trustees of the town, of the lease of the commons which gave rise to this controversy, an ordinance was passed dated the 12th day of January, 1845, which contained this requirement: “ The leases shall contain a piovision to the following effect, viz : 'That, should the rent reserved as aforesaid, or any part thereof, on any lease, remain unpaid for six months after the same shall become due, the board of trustees may, by resolution, declare such lease terminated and void, and the same shall expire and be determined from that day.” The lease in controversy was made in pursuance to the terms of this ordinance. The corporation, in its political capacity, having required the insertion of the clause of forfeiture, it is as though it had been done by the legislature. Had the board of trustees, of their mere volition, leased their lands as any other proprietor might have done in the exercise of his ownership, the principle on which the plaintiff seeks relief might obtain. In such case, there might be no difference between the corporation and .any private individual, and courts might exercise their equitable jurisdiction in suitable cases, in relieving against forfeitures as freely against the one as the othej;. The corporation having legislative power over the subject, the insertion of the clause of forfeiture, deriving its existence from legislation, is no violation of the law of the land, though it may be absolute ; for it is a principle, that a clause of forfeiture in a law is to be construed differently from a similar clause in a contract or engagement between individuals. A legislature can impose it as a punishment, but individuals can only make it a matter of contract. (3 Howard, II) Prom the view we [112]*112take of the subject, the clause of forfeiture was as binding on the lessee as though it had been enacted by the general assembly. The legislature delegated its judicial powers over the matter to the corporation, and the corporation, within the sphere of its delegated power, could act as authoritatively in relation to it as the legislature. The law-making power, in fact, made the board of trustees a miniature general gssembly, and gave their ordinances, on this subject, the force of laws passed by the legislature of the state. In giving the corporation legislative powers on the subject of leases, the general assembly must ■have necessarily intended that its ordinances should operate as laws and not as contracts. The state of things presented by this record, shows the necessity for the power exercised by the corporation. If the common-law requisites to enforce a forfeiture were made necessary, no body would collect the rents for them. The amount due from each would be so small, and the tenants so numerous, that the rents would not defray the expenses of agencies. The principle that a corporation can not-impose a forfeiture without express authority in its charter for that purpose, does not affect this controversy. Such principle seems only applicable to by-laws creating offences. Such bylaws, without the sanction of usage, or of an act of the legislature, can not create a forfeiture, to be levied by distress or sale of goods for their violation. (Kirk v. Nowil, 1 T. R. 118; Adley v. Reeves, 2 M. & Sel. 60.) They may impose a forfeiture for a violation of a by-law, but it can only be collected by an action of debt, unless the distress and sale are given. (Clark v. Tacket, 2 Ventris, 183.) This is the meaning of the saying, that a corporation can not impose a forfeiture without express authority.
Judge Ryland concurring, the judgment will be affirmed.
Leonard, J.
I do not concur in the opinion of the majority of the court. Here is a lease reserving a money rent, the payment of which the parties have secured by a provision in it to the effect that the lease shall cease upon the rents being six [113]*113months in arrears, accompanied by a formal resolution of the" board declaring the forfeiture ; and the present application is for relief against this forfeiture.
. Penalties are a common expedient, resorted to everywhere, to secure the performance of contracts, and are found annexed both to obligations for the payment of'money, and'also to obligations for the doing or forbearing of other acts. And it would seem that, in all civilized communities, it has been found necessary to lodge in some tribunal a power to mitigate them and reduce them to the actual or probable amount of the damage the party has sustained. (1 Bell’s Com. Laws of Scotland, 656; 1 Pothier on Oblig. by Evans, 345.) In English jurisprudence this relief is afforded in equity, and the ground upon which it is there placed is, in the language of the chancellor, in Peachy v. Duke of Somerset, (1 Strange, 447, and 2 White’s Lead. Cases in Equity, 448,) ££ from the original intent of the case, where the penalty is designed only to secure the money, and the court gives all that the party expected or desired.” Accordingly, from an early period, equity relieved at any indefinite time against forfeitures incurred by the nonpayment of rent, upon "the payment of principal, interest and costs, and this equity was recognized' and regulated by the English legislature in the 4 Geo. ch. 28, and also by our own legislature, in a similar provision, to be found in the 20th section of the act concerning ££ Landlord and Tenant.” To entitle the tenant to relief, he is not bound to account for his omission to pay at the appointed time, nor is he required to show any equitable circumstance giving him a title to -the interference of the' court, and we therefore can not withhold the relief here unless the present can be distinguished from ordinary cases of this kind.
It is to be remarked that the principle on this subject, applicable to cases of contract between party and party, is not applicable to penalties and forfeitures given by the statute or to conditions in law, and.in the early case of Peachy against the . Duke of Somerset, already referred to, the chancellor remarked' [114]*114that “ cases of agreement and conditions of the party and of the taio are certainly to be distinguished,” and on this ground he denied relief to a copy-holder, who had incurred a forfeiture of his copy-hold by making leases, &e., contrary to the eustona of the manor. When the legislature inflict a forfeiture as a penalty, on account of the performance or omission of an act, those who administer the law can not relieve against it, unless there be peculiar circumstances attending the particular transaction that furnish equitable grounds for relief, (Keating v. Sparrow, 1 Ball & Beatty, 368) ; and it is supposed that the present forfeiture is of that character, .and so not subject to equitable interference. The landlord here is a municipal corporation, expressly authorized by statute to grano leases o-f their lands, renewable forever ; and having by an ordinance provided that, in all leases to be granted, a clause should be inserted to the effect that, if the rent should be in arrear for six months, the board of trustees should have power to declare the lease terminated, and that the same should cease from that time ; and this clause having been put into the present lease as part of the contract, it is supposed.that the forfeiture is a pen-. alty inflicted by taw, and not by contract; in other words, that the provision binds the lessee by its own force as an ordinance and not as one of the terms of the bargain. Certainly I do not so view the matter. It could not, I think, be insisted that this provision in the ordinance would have affected the tenant if it had been wholly omitted from the contract; and yet, it must have been equally obligatory in that ease as in the present, if the position here suggested is to be maintained. No doubt it was competent for the legislature to provide that, in all leases to be granted by the corporation, if the rent remained unpaid, the corporation might terminate the lease by a resolution to that effect, entered upon their minutes ; nor is it doubted but that such a law would have excluded the tenants from the relief to which they would otherwise have been entitled. This is substantially the provision in reference to the lenses of the St. Louis commons, and such, it is believed, is the construction [115]*115given to it. (St. Louis Commons, Act 18th March, 1835.) But the legislature have not so provided as to the Carondelet commons ; and, although there was no reason for making the distinction, and, in all probability, the distinction made was accidental and not intentional, yet we can not disregard it and treat these leases as it would have been our duty to have treated them, if the effect of the nonpayment of the rent had been declared by the legislature, instead of by the corporation. In the St. Louis cases, the nullity insisted upon is declared by the law of the land ; in the Carondelet leases it is the ordinance of a municipal corporation that is to produce the result; and the vice of the argument, I think, is in supposing that the legislature, in the grant of the power to make leases, included any political power to change the laws of property. The whole matter, it seems to me, may be stated in a few words. The corporation, in the exercise of their power to grant leases, have, in order to secure a punctual payment of the rent, contracted with the tenants for a forfeiture in case of nonpayment; and this, forfeiture is subject to the general law of the land, for the obvious reason that it has not been otherwise provided by statute, nor have the legislature given the corporation-any political authority to inflict it as a penalty. I am therefore for applying to this lease the same remedies that are applicable to all others under the general law.