RIVES, Circuit Judge.
Imperial Production Corporation and Nottingham sued the City of Sweetwater,
In determining the liability of a municipal corporation for tort, the Texas courts recognize the distinction generally prevailing based on the nature of the act or function as governmental or proprietary, City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 261; 38 Am.Jur., Municipal Corporations, Sec. 572. The Texas Supreme Court said in the case just cited:
The position of appellants is based upon four arguments: First, that, in the absence of any state statute, a city acts in a proprietary capacity in operating an airport;
46d-15 (footnote 1, supra) was not intended by the legislature to exempt a municipality from liability for negligence in operating an airport; third, alternatively, that the statute does not include a business venture such as renting storage space; and, fourth, further alternatively, if the statute so exempts the municipality, it is unconstitutional. The appellee concedes appellants' first point, that, in the absence of any state statute, the operation of an airport is a proprietary act of a municipality.
The appellants elaborate their second point by urging that the effect of the
The original airport legislation in Texas was enacted in 1929 and amended in 1941 and 1947.
Appellants' third argument assumes the governmental nature of the operation of an airport under Article 46d-15, but urges that renting of space for the storage of airplanes is a business venture not included within the statute. The ordinance of the City of Sweetwater setting up the operation of the airport expressly stated that it was not the purpose of the City to enter into a business for profit.
To support their fourth and final argument, the appellants rely principally upon Christopher v. City of El Paso, supra, citing also the Annotation in 124 A.L.R. 350 on "Constitutionality of Statute Which Relieves Municipalities from Liability for Tort." In Stocker v. City of Nashville, 174 Tenn. 483, 126 S.W.2d 339, 341, 124 A.L.R. 345, the Christopher Case was distinguished as follows:
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. See Stocker v. City of Nashville, supra; 38 Am.Jur., Municipal Corporations, Sec. 574, p. 269, n. 5. When the function became governmental in its nature, the legal basis was furnished for the exemption of the municipality from liability for torts, indeed, that exemption
It follows that the judgment of the district court was correct and that judgment is
"Art. 46d-15. Public purpose, county and municipal purpose
"The acquisition of any land or interest therein pursuant to this Act, the planning, acquisition, establishing, 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. Acts 1947, 50th Leg., p. 190, ch. 114, § 15."
"Art. 1269h. Airports, maintenance and operation
"Section 1. A — That the governing body of any incorporated city in this State may receive through gift or dedication, and is hereby empowered to acquire, by purchase without condemnation or by purchase through condemnation proceedings, and thereafter maintain and operate as an airport, or lease, or sell, to the Federal Government, tracts of land either within or without the corporate limits of such city and within the county in which such city is situated, and the Commissioners' Court of any county may likewise acquire, maintain and operate for like purpose tracts of land within the limits of the county."
(Other subsections extend the geographical limits within which the power may be exercised.)
"Section 2. (a) For the purpose of condemning or purchasing, either or both, lands to be used and maintained as provided in Section 1 hereof, and improving and equipping the same for such use, the governing body of any city or the Commissioners Court of any county, falling within the terms of such Section, may issue negotiable bonds of the city or of the county, as the case may be, and levy taxes to provide for the interest and sinking funds so issued, the authority hereby given for the issuance of such bonds and levy and collection of such taxes to be exercised in accordance with the provisions of Chapter 1 of Title 22 of the Revised Civil Statutes of 1925.
"(b) * * * * *
"Section 3. * * * no City or County shall be liable for injuries to persons resulting from or caused by any defective, unsound or unsafe condition of any such airport, or any part thereof, or thing of any character therein or 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 construction, improvement, management, conduct, or maintenance of any such airport, or any structure, improvement or thing of any character whatever located therein or connected therewith."