                 HE     L'%    ORNEY       GENERAL
                              OP%?EXAW




Honorable Dorman Nickels
County Attorney
Wharton County
Wharton, Texas
Attention:      Mr. M. S. Munson, Jr.
Dear Sir:                Opinion No. O-4972
                         Re: Would a county or city of the State
                               of Texas be authorized to acquire
                               the site for an airport by lease from
                               an lndivldual;  instead of purchasing
                               same as provided in Articles 1269h,
                               Vernon's Annotated Civil Statutes,
                               and related questions?
          Your letter  of November 4, 1942, requesting the
opinion of this department on the questions stated therein
reads as follows:
            "I would appreciate   your advising me whether
    or not in your opinion,     a city or county of the
    State of Texas, would be authorized under the terms
    of Art. 1269h of the'Revised      Statutes, or any other
    Statute,   to do the following    acts;
            "(1)  Acquire the site for an airport by lease
     from an individual,  instead of purchasing same as
     provided in saia Art. 1269h.
           "(2)  Appropriate money of such County or City
     to pay the rental therefor without a bona issue.
            "(3)  Erect with County or City money a hanger
     upon such premises, and pay necessary maintenance
     charges including  salaries of guards.
           "(4)  Acquire and maintain such an airport in
     the manner above stated, to be operated,,and managed
     by the members of the Civil Air Patrol.
              Article   1269h, Vernon's   Annotated   Civil   Statutes
provides     in part:
Honorable Dorman Nickels,     page 2           o-4972


            “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
    leas’e, or sell,   to the Federal Government, tracts
    of land either within or without the corporate
    limits of such cftg and withln 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.
            “B--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, ana thereafter     main-
    tain and operate as an airport,    or lease, or sell
    to the Federal Government, tracts of lard without
    the county in which such city Is situated,     provided
    said tracts are not within five (5) miles of an-
    other Incorporated    city that has a population of
    more than fifteen    hundred (1500) people, according
    to the last preceding Federal Census.
            “C--That the governing body of any incorporated
    city in this State may, ana Is hereby empowered, to
    acquire through condemnation proceedings,        tracts
    of land located without the county in which said
    city is located,    proviaea saia tracts of land are
    within SIX (6) miles of the oountg boundary of the
    county in which said city is located,       and. are not
    within five (5) miles of another Incorporated          city
    having a population     in excess of fifteen    hundred
    1500) people, aoooraing to the last preceding Fed-
    eral Census ; and that said. city may thereafter
    maintain and operate as an airport,       or lease,    or
    sell,  sala tracts   to the Federal Government; pro-
    vided, however, that the grant herein made to ac-
    quire land through condemnation prooeedings,         without
    the county in which said city is located,        shall
    expire on December 31, 1942, but that tracts of
    land acquired prior to that date, and under the
    authority    of this Act, may continue to be oper-
    ated, leased,    or sold, as provided in this Act.
           “D--In addition to the power herein granted,
    the Commissioners’ Courts of the several counties
    of this State are hereby authorized to lease any
.




    Honorable   Dorman Nickels,   page 3           O-4972


        airport that may be acquired by the county, as
        herein provided,     to any incorporated  city or muni-
        cipality   within such county, or to the Federal
        Government, for the purpose of maintaining and
        operating an airport;     and provided further that
        any incorporated     city having acquired land for
        an airport,    or an airport,   under the authority
        of this Act, shall have the right to lease said
        land or said airport to the county in which said
        incorporated    city is located.
                "E--In addition to the power which it may now
        have, the governing body of an incorporated         city
        shall have the power to sell,     convey, or lease,
        all or any portions    of any airports    heretofore     es-
        tablished    or that may be hereafter    establlshed,
        or any land. acquired under the provisions        of this
        Act, to the United States of America for any pur-
        pose deemed by the Government of the United States
        necessary for National Defense, or for air mail
        purposes, or any other public purpose, or to‘the
        State of Texas, or any branch of the State Govern-
        ment, or to any other person, firm,or corpqratlon,
        to carry out any purpose necessary or incidental
        to National Defense or training      incidental    thereto;
        and that such governing body shall provide rules
        and regulations    for the proper use of any such air-
        ports in connection with the purposes stated herein.
        As amended Acts 1941, 47th Leg., p. 65, ch. 51,
        8 1; Acts 1941, 47th Leg., p. 196, ch. 142,-g 1."

                It will be noted that Article  1269h, supra, express-
    ly~provides   or sets forth the manner that real estate may be
    acquired by a city or county for the purpose of an airport,
    namely, through gift or dedication,    or by purchase wlthout
    condemnation or by purchase through condemnation proceedings.
               Neither this statute nor any other statute that we
    have been able to find authorizes   the city or county to ob-
    tain or acquire land for the purpose of an airport by a lease
    except Article   12693, Vernon's Annotated Civil Statutes which
    will be later discussed.
                Article    1269h, authorizes   a city or a county to
    lease an airport after being acquired by a city or a county
    to the Federal Government for certain purposes and also au-
    thorizes   a county to lease an airport       to the city and further
    authorizes   a city to lease an airport       to the county.   How-
    ever,   as above   stated,  we  find no  provisionexcept   as above
    mentioned authorizing      a city or county to acquire real estate
                                                                   .




Honorable   Dorman Nickels,   page 4           0 -4972


by lease from individuals,   instead    of acquiring     the same as
authorized by Article   1269h.
            Article    126gj, supra, expressly authorizes        any
city having a population of more than 4O,OOO,inhabitants ac-
cording to the last preceding Federal Census.
            11. . . to own, maintain and operate an airport,
     either within or without, or partially          within and
                              the corporate limits of such
     ZrtE~i"t~y E"~~~E~ruct         acquire by gift,   purchase,
     leas; or the exercise       Af the right of eminent do-
     main; improve, enlarge,        extend or repair any air-
     port,  and  to   acquire   by  gift,  purchase, lease or
     the exercise     of the right of eminent domain, lands
     or rights in lands in fee simple in connection
     therewith;    (c) to borrow money and issue its bonds
     or warrants to finance in whole or in part the cost
     of the acquisition,       construction,   Improvement, en-
     largement, extension or repair of any airport;           . ...'
            It will be noted that the above mentioned statute
authorizes  any city having a population  of more than 40,000
inhabitants  according to the last preceding Federal Census to
acquire real estate by lease for the purpose therein mentioned.
However, as Wharton County has no city having a population of
40,000 inhabitants   or more according to the last preceding
Federal Census, said statute is not applicable    to said county
therefore,  for the purpose of this opinion we do not deem it
necessary to discuss this statute further.
            It is well established   in this State that a city or
county has only that power or authority      conferred by statute
or the Constitution    and such power and authority which may
be necessarily   implied to exercise   the express power and au-
thority given by the statutes or Constitution       of this State.
           In view of the foregoing it is the opinion of this
department that neither any city having a population   of less
than 40,000 inhabitants  according to the last preceding Fed-
eral Census, nor any county, is authorized to acquire land
for an airport by lease from an individual,   but such land must
be acquired as provided by Article  1269h, supra.
          We direct your attention    to Article   5248e, Vernon's
Annotated Civil Statutes, which authorizes      any city or county
in this State, separately or jointly    to acquire lands for the
use of the United States Government, either by a lease for a
term of years or in fee simple title.     Said statute further
provides that the lands so acquired shall lie within the limits
.   .    -




        Honorable Dorman Nickels, page 5           o-4972


        of the county acquiring same, or if acquired by a city, with-
        in the limits of the county in which said city is located;
        however, we do not construe your request as pertaining to the
        acquisition of lands for use of the United States Government,
        therefbre, if we are correct in the construction of your re-
        quest, the foregoing statute is not applicable to the ques-
        tion under consideration.
                  As we have in effect answered your first question
        in the negative it is not necessary to consider your other
        questions.
                   Trusting that the foregoing fully answers your ln-
        .quiry, we are
                                           Yours very truly
                                     ATTORNEY GENERAL OF TEXAS


                                        By s/Ardell Willi.3ms
                                             Ardell Williams
                                                   Assistant
        AW:mp:wc

        APPROVED NOV. 21, 1942
        s/Gerald C. Mann
        ATTORNEY GENERAL OF TEXAS
        Approved Opinion Committee By s/BWB Chairman
