Ellis Landing & Dock Co. v. City of Richmond

TYLER, P. J.

This action is one brought by plaintiff as a taxpayer of the City of Richmond for the purpose of enjoining said city from proceeding, carrying out, and operating under a lease that is void because of its execution in excess of the powers of the city and in a manner other than provided by the charter. The court sustained a demurrer to the complaint without leave to amend. This appeal is from the judgment for the purpose of reviewing the order.

The complaint was filed August 7, 19231 It is alleged therein in substance that the City of Richmond was at the commencement of the action and at all times mentioned in the complaint the owner in fee-simple absolute of and in possession of certain real estate situate in the City of Richmond and containing some 1,098 acres of land, which is alleged to be a portion of the waterfront of said city. It is further alleged that the city holds such property under a public trust for the improvement of commercial facilities by the erection of wharves and other commercial conveniences along its waterfront, and the regulation and collection of wharfage and dockage and other income from its use. The complaint, proceeding, charges the City of Richmond, “by the mayor and clerk thereof,” and defendant Draughon with having entered into a certain agreement with reference to the property which is wholly void and of no effect as the agreement exceeds the power, jurisdiction, and authority of the City of Richmond and of the council of said city, for the reason that it is

ultra vires

and the said mayor and said clerk had no power, authority, jurisdiction, or right to execute the same, and that the council of said city likewise had no authority, jurisdiction, or right to authorize, direct, or provide for or ordain its execution. It is then alleged that the said Draughon has abandoned

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said agreement and no longer has or holds any lease upon the property in question, but that the defendants and their officers, employees, and agents, notwithstanding1 such abandonment, seek to operate thereunder. Then follows an allegation that if the carrying out of said agreement is not restrained the income of said city will be reduced and the taxable burden of plaintiff will be increased to his irreparable injury and damage. The prayer is that the defendants and their agents be enjoined from doing anything under or in pursuance of- the agreement and that it be declared wholly null and void and of no effect, and that it be vacated and set aside.