GROVER SELLERS            ASIJWTIN11.-l-lKuAs      Overruled by
                  1s                               s-55 (1953)
  A-"lNr.TY
          "liNIC"‘k..



      Hon. E. A. Hickeraon
      County Auditor
      Montgomery County
      Conroe, Texas
      Dear Sir:               Opinion mo. o-7185
                              Re:   Liability of the County for
                                    the negligence of its agents
                                    in connectLou with the
                                    operation of a county air-
                                    port.
                We are In receI.ptof your letter of recent
      date requesting the opinion of this department on the
      above stated matter. We quote frolayour letter as fol-
      lows:
                "The question has arisen in the Commissioners’
           Court of Montgomery County, with reference to carry-
           ing Insurance for personal and property damage in
           the operation of an alrport.
                “My lmpresslon is that the county is not in
           any way res$onslble for this class of claim against
           the county.
                 Article 1269h, Vernon's Annotated Civil Statutes,
       In part, provides:
                "Sec. 3. Any ALr Port acquFred under and by
           virtue of the terms of this Act shall be under the
           management and control of the governing body of the
           city or the Commissioners t Court of the county ao-
           quirlng the same, which is hereby expressly author-
           ized and empowered to Improve, maintain and conduct
           the same as an Air Port, and for that purpose to
           make and provide therein all,,neceasaryor fit im-
           provements and facilities and to fix such reasonable
           charges for the use thereof as such governing body
           or Commissioners' Court shall deem fit, and to make
           rules and regulations governing the use thereof.
           All prooeeds from such charges shall be devoted
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Hon. E. A. Hickerson - Page 2


     exclusively to the maintenance, upkeep, improve-
     ment and operation of such Air Port and the
     facilities, struotures, and Improvements therein,
     and no city or oounty shall be llable for injuries
     to persons resulting from or caused by any de-
     fective, unsound or unsafe condition of any such
     Air Port, 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 Commlssionersl
     Court, officer, agent, servant or employee or other
     person with reference to the construction, improve-
     ment, management, conduct, or maintenance of any
     such Air Port or any structure, improvement, or
     thing of any character whatever, loaated therein
     or conneoted therewith."
          In the base of Christopher v. City of El Paso,
98 S.W. 2d, 394 (error refused) the Court held that the
portion of the above quoted provisions of Article 1269h
which exempted oities from liability for injuries to
persons caused by negligence of their operating agents
was unconstitutional. The Court further pointed out that
the operation of an airport by a city was a
rather than a governmental function and thatwas
therefore liable for the negligence of its agents in con-
nection with the operation of such airport. We quote the
following language from the Court's opinion:
          " . . .ve have concluded that the operation of
     the airport in this case was a proprietary fun&ion
     and that the city was liable for the negligence of
     Its agent in such operation the same as other
     private corporations would have been. We agree with
     appellee that a determination of whether a city is
     acting in a governmental or proprietary capacity
     depends, in a measure, upon the facts of the par-
     ticular case; but we cannot agree that the Legls-
     lature In granting the power to incorporated cities
     In Texas to own and operate airports made the exer-
     cise of such power a governmental function.
          "The operation of the airport being the exer-
     cise of a proprietary function, we next approach the
     question of the constitutionality of the provisions
     of the provisions of Article 1269h, B 3, purporting
     to exempt cities from liability for injuries to
     persons caused by the negligence or want of skill or
     care of their agents in such operation. . . .
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Ron. E. A. Hlckerson - Page 3


          "Appellant's seoond objection to the exemption
     provision Is that It violates section 1, article 14,
     of the Amendments to the Federal Constitution, and
     sections 3, 13, and 19 of article 1, and section 26
     of article 16, of the Texas Constitution. o D e O
         "That such a statute contravenes ths equal pro-
    tection clause of the Fourteenth Amendment to our
    Federal Constitution, see Frost v. Corporation Com-
    mission, 278 U.S. 515, 49 S. Ct. 235, 245, 73 L. Ed.
    483; Smith v. Cahoon, 283 u. S.'553, 51 s. ct. 582,
    75 L. Ed. 1264; Lossing v. Hughes (Tex. Clv. App.)
    244 S. Ii. 556.
         "That the provision violates the due process
    clause of our own Constitution, see Beaumont Traction
    Company v. State, 57 Tex. Clv. App. 605, 122 S-W. 615;
    City of Wichita Falls v. Lipscomb (Tex. CFv. App.)
    50 S.W. (2d) 867 (writ refused); City of Amarillo v.
    Tutor (Tex. Corn.App.) 267 S.W. 697.
          "We do not concur in the contention that the
     invalidity of the exemption provision, in the absence
     of a saving clause, renders the entire act uncon-
     stitutiorlal. While it is true that the provision Is
     incidental to the main purpose of the act, yet it is
     capable of being separated from the act without
     materially affecting that main purpose."
          We note that the various provisions of Article
1269h are applicable to counties as well as to cities. It
Is therefore our ooinlon that when a countv ooerates an
airport under the authority of Article 1269h,*such county
is performing a function identical in nature with that which
the Court held in the above oltea case was proprietary in
character.
          We point out further that the Court held in the
case of State v. Elliott, 212 S.W. 695 (error refused)
that when the State engages in a proprietary business,
the State is liable for injuries sustained by reason of
the negligence of its agents in connectlon with the oper-
ation of such proprietary enterprise. The reasoning of
the Court in so holding si succinctly stated In the follow-
ing language contained in the Gourt"s opinion:
          "When a State engages in an enterprise which
     is usually carried on by individual persons or com-
     panies, it voluntarily waives its soverign character,
     and is subject to like regulations with persons
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Hon. E. A. Hickerson - Page 4


     engaged in the same calling.'"
          After carefully considering the various provision3
of Article 1269h and in view of the holding in the case of
Christopher v. City of El Paso, supra, It Is our opinion
that when the county owns and operates an airport, it is
engaged in a             rather than a governmental function.
Although it has
             =F==een held generally that the county is not
liable for injuries sustained by reason of the tortlous  or
negligent acts of Its agents or employees In the absence of
a specific statute creating such liability, we note that in
each instance where our courts have passed upon such matters
the county was engaged in a governmental function. We are
unable to find a case where our courts have passed upon the
precise question as to the liability of the county for
injuries sustained by reason of the negligence of Its agents
or employees when the county Is functioning in a proprietary
capacity. In view, however, of the holding in thencase of
State v. Elliott, Supra, it is our opinion that when the
county engages in the proprietary activity of operating an
airport under authority granted to said county by the Legis-
lature, it Is liable for injuries sustained by reason of
tortlous or negligent acts of its agents or employees.
          Since, under the provisions of Article 1269h the
county Is authorized to own and operate a county airport,
and in view of our holding that the county is liable for
injuries sustained by reason of the negligent or tortious
acts of its agents or employees In connection with the
operation of such airport, it is our further opinion that
the Commissioners' Court has the implied power to employ
reasonable methods to protect the county against such
liability. You are therefore advised that the matter of
carrying personal and public liability insurance In con-
nection with the operation of the county airport is within
the sound discretion of the Commissionerat Court.
         We trust that the above and foregoing will
satisfactorily answer your inquiry.
                                    Yours very truly
                                ATTORREY GERERAL OF TEXAS


JAE:djm:mjs                     BY    /s/J. A. Ellis
                                          J. A. Ellis
APPROVED Al% 10'1946                      Assistant
/s/ Grover Seller                 APFROVED
ATTORREY GERERAL OF TEXAS          OPINION
                    .. .         COMMITTEE
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