CITY OF CORSICANA, Petitioner, v. Jimmy WREN et al., Respondents, 317 S.W.2d 516

GARWOOD, Justice. For all practical purposes, this case maybe said to present the single question of whether ownership and operation of an airport by a Home Rule City pursuant to art. 46d-15, Vernon’s Tex.Civ.Stats., is a governmental function in the sense that renders the city immune from liability for negligence in burning grass on the airport premises, as a result of which certain property of the" respondent-plaintiff there stored by him under contractual arrangement with the petitioner-defendant City was destroyed or damaged. The Waco Court of Civil Appeals, in thoughtful opinions, including one on rehearing, held against immunity, reversing accordingly a

summary judgment of the trial court which had denied recovery on that ground. 309 S.W.2d 102. Although conceding the question to be, like most disputes over city immunity, confusingly difficult, we have concluded to reverse the appellate judgment and affirm that of the trial court. At the outset, the respondent-plaintiff contests our jurisdiction or right to reverse or even consider the case upon the broad ground presented by the petitioner City that city operation of airports is a governmental function. It is said that the Court of Civil Appeals rested its judgment also on other propositions, the contraries of which -the City has not here formally asserted, to wit, (

a) that the peculiar facts incident to the operation of this particular airport, such as the absence of scheduled commercial flights, render the operation nongovernmental regardless of what might be the result in the ordinary case, and (

b) that in no event is the mere burning of grass governmental. We reject this contention. The court’s intent, if any, to rest its judgment alternatively on grounds (

a) and (

b) seems quite doubtful, especially since, as to (b), the trial court concluded the evidence to have established beyond question that the grass burning was incidental to maintenance of the airport, and this conclusion was not questioned by the respondent-plaintiff as appellant in the Court of Civil Appeals. In any event, the language of the' latter court as a whole so closely involves the two mentioned propositions with its main proposition of municipal airport operation in general being proprietary, that we are reluctant to deny review of the case on its merits for the purely procedural reason advanced.

The corresponding procedural rules are intended less as hard and fast limitations on the right of review than to avoid prejudice to the opposing party from confusion as to the issues for decision and to relieve busy courts of the responsibility of, in effect, briefing the case for one or both of the parties. If the two propositions mentioned actually do represent questions separate from the principal one, the respondent-plaintiff has obviously not suffered by omission of the petitioner City to make special points about them, nor have we ourselves been thereby embarrassed in our consideration of the case.

Moreover, making the further assumption that these propositions were made separate grounds of decision by the appellate court, we find no difficulty in concluding that they are not well taken. The airport in question was not less governmental because of its unimportance as compared to busier ones of other cities, including the absence of scheduled air traffic. Obviously the City would welcome such traffic if and when the same should develop, and in the meantime it is doing what an airport owner and operator would normally do under the circumstances.

The mere burning of grass, of course, has no governmental significance nor, for that matter, proprietary significance. The reason for doing it is what counts. It is not, and has not been, contended that there was a fact issue (precluding

summary judgment) as to whether the burning was for maintenance purposes as the trial court said it was; and being for such purposes, it was certainly no less a part of airport operation than we have held the pruning of an ornamental shrub to be with reference to the operation of a public school. Braun v. Trustees of Victoria Independent School Dist., Tex.Civ.App., 114 S.W.2d 947, wr. of er. refused. Our decision in City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 261, does not purport to hold that the cutting of grass is per se, or even prima facie, a proprietary activity.

The real question in the case is argued from angles of common law, statutory law (art. 46d-15, supra) and constitutional law. Under common law, the majority of such states as have had occasion to pass on the matter hold operation of airports to be a proprietary function of the municipality concerned, with the consequence of-liability for negligence. See cases collected in 138 A.L.R. 126; also Wendler v. City of Great Bend by the Supreme Court of Kansas, 181 Kan. 753, 316 P.2d 265.

However, while the number of courts so holding is impressive, it is yet not such as virtually to compel us to follow suit when meeting the question ourselves for the first time, as we now do. The only prior Texas decision dealing with the point is that of the El Paso Court of Civil Appeals in Christopher v. City of El Paso, Tex.Civ.App., 98 S.W.2d 394, which did purport to align this state with the “proprietary” group.

However, the actual decision went in favor of the city on the ground that the individual in charge of the airport had been found by the jury to be a lessee of the city rather than its agent, and accordingly our own action in declining to review the judgment for want of jurisdiction was not an approval of the rulings of the Court either as to city airport operation being a proprietary function or as to the further (and hereinafter considered) question of legislative power to permit exemption of liability for city negligence in airport operation.

We know of no later reference by this Court, favorable or otherwise, to these rulings of the Christopher case. And whatever we might have been disposed to hold as a matter of mere reasoning from precedent and analogy and apart from statutes, the effect of art. 46d-15, supra, must be considered.

That provision, fully copied in the footnote, forms part of the self-styled Municipal Airports Act, a “uniform” law adopted by Acts 1947, 50th Leg., ch. 114, p. 183, and includes a specific statement that municipal airport maintenance and sundry other municipal activities concerning airports “are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity.” (Emphasis supplied.) The caption of the act'uses the same words “public and governmental functions”.

The emergency clause includes a recital “that the public welfare will best be served by the passage of this Act.” Since the act followed the Christopher case, supra, by some ten years, it should be noted that the latter, in addition to declaring municipal airport operation to be proprietary, held to be unconstitutional (at least as to cities in contradistinction to counties) a portion of an earlier statute, to wit, Acts 1929, 41st Leg., 1st C.S., ch. 83, p. 209 (art. 1269h, Vernon’s Tex.Civ.Stats.), the general subject of that act being an authorization of city and county acquisition and operation of airports.

The part declared unconstitutional was the provision of Sec. 3 reading: “ * * * and no city or county shall be liable for injuries to persons resulting from or caused by * * * any negligence, want of skill, or lack of care on the part of any governing Board or Commissioners’ Court, officer, agent, servant or employee or other person with reference to the * * * management, conduct, or maintenance of any such Air Port * * * or thing of any character whatever, located therein or connected therewith.” The theory of this ruling was that, the activity in question being, in the Court’s opinion, proprietary, the quoted statutory exemption from liability conflicted with art.

I, Sec. 13 of the State Constitution, Vernon’s Ann.St. (“All courts shall be open, and every person for an injury done him, * * * shall have remedy by due course of law”), art. I, Sec. 19 of the same (Due Process) and the 14th Amendment to the Constitution of the United States. The federal cases cited by the El Paso Court in support of the last mentioned ground of decision seem at best of quite remote application, and, as an academic matter, one may question whether both Sections 13 and 19 of art. I of our state constitution cover the same area of legislative authority to abolish causes of action.

However, as we correctly stated in Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, various prior decisions of this Court have held that, largely by virtue of Sec. 13, supra, even a home rule city cannot, by charter or ordinance, which is in effect the same as

an act of the legislature, exempt itself from liability for causes of action that “are well established and well defined in the common law”, for example, those arising from the construction and maintenance of streets. The Lebohm case stands for the proposition that, at least as regards a single city, the legislature itself is without power to exempt it from negligence liability in respect of streets, although we expressly disclaimed holding that a general provision applicable to all cities would be void. Now obviously, as the review of our decisions in the Lebohm case will demonstrate, we have on occasion simultaneously (

a) made an original classification of a particular activity as governmental and (

b) accordingly denied legislative power to exempt the city from liability for exercise of the function thus classified. On the other hand, while the activity in question was thus novel in the sense that we ourselves had not theretofore classified it, it was not in any of these cases novel in the historical sense; and none of the mentioned decisions even purported to consider the specific question of whether the legislature had, with respect to an historically novel activity or even one not so novel, the power to classify it as governmental so as to permit of immunity for its exercise.

It has, indeed, been sometimes held, as in Rhodes v. City of Asheville, 230 N.C. 759, 53 S.E.2d 313 (on rehearing) and Brasier v. Cribbett, 166 Neb. 145, 88 N.W.2d 235, and it is accordingly argued here, that this function of classification is exclusively one for courts. Presumably the argument would apply as much to a legislative declaration that a given activity is proprietary as to a declaration that it is governmental. But, one may well ask, why should it be so ? Certainly neither Sec. 13, supra, nor any other constitutional provision, purports so to provide.

To be sure, courts may adjudge that a horse is still a horse even when the legislature has called it a cow; but if science should produce some doubtful new animal resembling both, are judges necessarily better qualified than the legislature to say whether it is a horse or cow? The legislature is the repository of all Texas lawmaking power not otherwise assigned by the state or federal constitutions.

Presumably its collective understanding of life and government is quite as broad as that of the courts, and certainly it has as much experience as they in evaluating the relative impact of a given municipal activity as between the general objects of government evidenced in the state or national sovereign and the narrower objects said to be peculiar to cities as limited groups of people.

As regards a given activity, of which, by reason of its historical novelty and not easily appraised objects and effects, the legislative classification as governmental (or nongovernmental) cannot be called arbitrary or clearly at variance with “well established and well defined” law on the subject, the classification ought to be respected by the courts. In Imperial Production Corp. v.

City of Sweetwater, 5 Cir., 210 F.2d 917, a distinguished court, accustomed to dealing with Texas law questions, held for city immunity in a case substantially identical with the present and in so doing expressly sustained the constitutionality of the relevant provision of art. 46d — IS, supra, and relied upon it. Kirksey v. City of Fort Smith, by the Supreme Court of Arkansas, 227 Ark. 630, 300 S.W.2d 257, held to the same effect, looking to the legislature as an authorized spokesman of state policy in the matter of what is or is not governmental for tort immunity purposes.

While the background of Arkansas decisions, as reviewed in that case, is evidently less hostile to city immunity generally than our own, the court’s heavy reliance on the same sort of statutory declaration as art. 46d-15, supra, is unequivocal. Van Gilder v. City of Morgantown, 136 W.Va. 831, 68 S.E.2d 746, is to the same effect, although conceding it to be somewhat weakened as authority here by the number of the dissents and by its reference to the fact of existing state regulation of aviation. Stocker v.

City of Nashville, 174 Tenn. 483, 126 S.W.2d 339, 124 A.L.R. 345, rested on a statute which expressly conferred governmental -immunity on cities in the matter of airport operation, but in distinguishing the Christopher case, supra, and otherwise, clearly upheld and relied on the legislative classification of the activity in question as governmental. Since, no doubt, a purported delegation of state immunity implies or includes a legislative finding that the activity is governmental, the purport of the decision may well be that reflected by the language in Imperial Production Corp. v.

City of Sweetwater, supra (see footnote 2), to the effect that the statute is valid if not arbitrary. See also Abbott v. City of Des Moines, 230 Iowa 494, 298 N.W. 649, 138 A.L.R. 120; Holland v. Western Airlines, D.C.Mont, 154 F.Supp. 457. We agree with the line of cases just referred to and find nothing unreasonable in either art. 46d-15 or the earlier statute, art. 1269h, Sec. 3. To that extent we decline to follow the Christopher case. As suggested, aviation, with all the corresponding .changes in civil and military conditions and relationships, is relatively novel.

However familiar it may now appear, there are doubtless tens of millions of people still living, in whose youth the airplane did not even exist. Its progress from nothingness to its state of vast importance has been, and continues to be, fantastically rapid.

Doubtless due to the very nature of aviation, including its extraordinary speed and freedom of movement — so far less inhibited than any other form of conveyance and so replete with corresponding advantages and dangers, civil and military — its career has from the beginning been subject to governmental interest of one kind and another to a much greater and more accelerated degree than in the case of maritime or terrestrial types of locomotion.

Part of this extraordinary governmental intervention has been in the essential matter of providing airports — usually located at or near cities, in which nowadays, especially in Texas, the great bulk of the population lives. No doubt airports, like railroad terminals and ship wharves, could be, and in some instances are, run by private enterprise, even as, only a short time back, education was a strictly private affair and, further back, tax collection and military operations were sometimes farmed out by governments to private persons.

But this does not mean that airport operation, when conducted by a city or other governmental entity, cannot be honestly classed as governmental, especially when we know that in our own state most or all important airports are municipally owned and operated. And it would seem that at least some significance is to be accorded the fact that the federal government has often, as in the instant case, in effect donated erstwhile military airports to cities.

The interest of government in airports may well be relatively much less one of local economic promotion than it is in the case of governmentally operated communications facilities generally. Public safety is more heavily involved — for the protection of both those who travel by, or engage in, aviation, and those on the ground who might be injured in person or property as a result of aviation; for safety in war as well as in peace.

Within limits, it is probably true that the more airports we have, the safer are all the incidents of an air age, including even such indirect safety contributions as popular familiarity with aircraft which, in turn, tends to produce more and better aviation personnel and equipment for war and other public emergencies. Quite conceivably public ownership and operation of airports, whether by cities, counties, states or the nation, is a more rapid and orderly route to the various public objectives involved than private ownership and operation would be.

Obviously the fact that an airport is operated by a city, as distinguished from a county, state or the nation, does not of itself make it less governmental by nature than it might otherwise be. The fact that the sovereign immunity of a state or county is vastly broader than that of cities does, not create a presumption against a given city activity being considered governmental.

The same factors that distinguish aviation from other forms of locomotion, civil and military, would seem sufficiently to support classifying municipal airport operation as governmental to the point that such a classification can hardly be called unreasonable. The same differences, historical and otherwise, also support the view that airport operation is not such a long and well established source of municipal liability as to be beyond the power of the legislature to decree that it does not exist.

For the reasons given the judgment of the Court of Civil Appeals is reversed and that of the trial court in favor of the petitioner-defendant City is affirmed. SMITH, WALKER and GREENHILL, JJ., dissenting. . “Sec. 15.

The acquisition of any land or interest therein pursuant to this Act, the planning, acquisition, establishment, development, construction, improvement, maintenance, equipment, operation, regulation, protection and policing of airports and air navigation facilities, including the acquisition or elimination of airport hazards, and the exercise of any other powers herein granted to municipalities and other public agencies, to be severally or jointly exercised, are hereby declared, to be public and governmental functions, exercised for a public purpose, and matters of public necessity; and in the case of any county, are declared to be county functions and purposes as well as public and governmental; and in the case of any municipality other than a county, are declared to be municipal functions and purposes as well as public and governmental.

All land and other property and privileges acquired and used by or on behalf of any municipality or other public agency in the manner and for the purposes enumerated in this Act shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity, and, in the case of a county or municipality, for county or municipal purposes, respectively.” (Emphasis supplied.) . “It is clearly within the province of the legislature, when acting reasonably and not arbitrarily, to determine whether

an act that may be performed by a city is public in its nature and performed as the agent of the state in furtherance of general law for the interest of the public at large and, hence, governmental.” 210 F.2d 917, 920. . See 1958 World Almanac, p. 264; 1958 Texas Almanac, pp. 91 et seq.