Haggerty

I dissent from that portion of the majority opinion which holds that there is a possibility under modern conditions and concepts of the lease existing for 21 years without either vesting (that is, its term commencing) or failing. I agree with everything said in the majority opinion concerning the rule against perpetuities, the advisability of preserving it, and that it applies where there is only a “bare possibility” of the 21-year period being exceeded. Where I differ with the majority is in their holding as a fact that there is such possibility here. In considering this lease we firstl must determine its starting date. While it contains no definite starting date, it does provide: “The Port shall and will in good faith immediately after the execution of this lease proceed with plans for the construction and construct a convention and banquet hall building upon said premises, and shall thereafter prosecute the same to completion with all due diligence.” 1 When the building is substantially completed and ready for occupancy, lessor is required to notify lessee and on the first day of the calendar month next succeeding 30 days thereafter, the term of the lease commences. The…

This case was originally assigned to Mr. Justice Bray for the preparation of an opinion. Mr. Justice Wood and I agreed with everything contained in the tentative opinion prepared by Mr. Justice Bray, except that we disagreed with his proposed disposition of the point involving the rule against perpetuities. Except for the point involving the rule against perpetuities, the opinion that follows has been prepared and written by Mr. Justice Bray:

In a taxpayer’s action for injunction and declaratory relief, plaintiff appeals from a judgment in favor of defendant.

Questions Presented

1. Has the Board of Port Commissioners of the City of Oakland, 1 either directly under the city charter or through action of the city council, the power to construct and to lease a convention hall and banquet building in the port area ?

2. Is the lease invalid (a) because of lack of proper controls; (b) because violative of the rule against perpetuities?

Record

September 22, 1955, the board adopted resolution Number B4610. It declared that “public necessity and convenience and the interest of the Port” required that the city lease a building to be constructed in a certain portion of the Jack London…

This case was originally assigned to Mr. Justice Bray for the preparation of an opinion. Mr. Justice Wood and I agreed with everything contained in the tentative opinion prepared by Mr. Justice Bray, except that we disagreed with his proposed disposition of the point involving the rule against perpetuities. Except for the point involving the rule against perpetuities, the opinion that follows has been prepared and written by Mr. Justice Bray:

In a taxpayer's action for injunction and declaratory relief, plaintiff appeals from a judgment in favor of defendant.

Questions Presented

1. Has the Board of Port Commissioners of the City of Oakland, [fn. 1] either directly under the city charter or through action of the city council, the power to construct and to lease a convention hall and banquet building in the port area?

2. Is the lease invalid (a) because of lack of proper controls; (b) because violative of the rule against perpetuities?

Record

September 22, 1955, the board adopted resolution Number B4610. It declared that "public necessity and convenience and the interest of the Port" required that the city lease a building to be constructed in a certain portion…