On Motion for Rehearing
We have given much consideration to ap-pellee’s motion for rehearing, as well as the amici curiae briefs which we permitted to be filed in this cause and we are still of the opinion that the pronouncements in the Le-bohm case by our Supreme Court, cited in the original opinion, should control us here.
, In that opinion, no motion for rehearing, we find this statement: “Thus it may be seen that legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one’s ‘land, goods, person or reputation’ is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.”
In the case at bar there is no substitution of the remedy which Art. 46d — 15, Vernon’s Ann.Civ.St. seeks to take away from one who has suffered by reason of the negligent conduct of the city or its employees. Nor do we think that the operation of a municipal airport, insofar as taking care of its property, is necessarily an exercise of the police power in the interest of the general welfare. If it is, it seems to us that the maintenance of the city’s streets would fall in the same category. Our view is that legislation that seeks to make the negligent action of the city in the maintenance and care of its grounds free of tort liability is arbitrary and unreasonable, as does Art. 46d-15 aforesaid.
Going back to'the decision of the 5th Cir. Ct. of App. in Imperial Production Corp. v. City of Sweetwater, cited in the original opinion, we find this statement [210 F.2d 919]:
“In 1936 a Texas Court of Civil Appeals in Christopher v. City of El Paso, 98 S.W.2d 394, held Section 3 of the Act (Art. 1269h, R.C.S.) to be violative *109of the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Texas State Constitution, Vernon’s Ann.St., art. 1, § 19. That holding, however, was predicated upon the operation of the airport being a proprietary function, and the Court said: ‘ * * * we cannot agree that the Legislature in granting the power to incorporated cities in Texas to own and operate airports made the exercise of such power a governmental function.’ Christopher v. City of El Paso, supra, 98 S.W.2d at page 398. The Texas Court expressly determined that the remainder of the Act was unaffected by its decision. After that decision, therefore, Article 1269h of the Revised Civil Statutes, Vernon’s Ann.Civ.St. (footnote 4, supra) still furnished authority to municipalities to acquire land for airports, * * * to issue bonds and levy taxes to that end, and to do all things necessary to the accomplishment of the statutory purpose.
“The Act with which we are now concerned, Article 46d — 15 (footnote 1, supra) was adopted in 1947, the same year in which Article 1269h was last amended. There was no need for Article 46d — 15 to accomplish the purposes for which appellants contend that it was intended. Those pzirposes zvere already accomplished by Article 1269h.”
The opinion further says:
“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. (Citing cases) * * * 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 followed automatically from the nature of the function. The act was, therefore, not subject to the constitutional objections urged.” (Citing cases).
We think the foregoing conclusion by our Sth Circuit Court is in irreconcilable conflict with many of the statements of our Supreme Court found in the Lebohm case. First of all, the statute here under consideration does not impose any duty upon the City of Corsicana to operate an airport. The operation of the airport as such by the City of Corsicana is of its own free will.
In the case of City of Houston v. Quinones [142 Tex. 282, 177 S.W.2d 261], cited in our original opinion, our Supreme Court pointed out that the “underlying test is whether the act performed by a city is public in its nature and performed as the agent of the State in the furtherance of the general law for the interest of the public at large, or whether it is performed primarily for the benefit of those within the corporate limits of the municipality.” Our Supreme Court, in distinguishing its decision from that in the City of Ft. Worth v. George, Tex.Civ.App., 108 S.W.2d 929 (writ ref.) said: “It was held in that case (the George case) that the collection of garbage by a municipality is a governmental function, because the duty is imposed upon it by the State Legislature and it is performed by the city in furtherance of general law for the interest of the public at large.”
It is our view that it cannot be contended here that the statute under consideration imposes any duty on the City of Corsicana to maintain and operate an airport, and likewise, it certainly does not impose any duty upon the City of Corsicana to cut the weeds and grass, or burn the grass on the land used by the airport. Moreover, we are of the view that the City of Corsicana, under the factual situation here, was acting in a proprietary capacity in operating and maintaining its airport, and certainly in burning the grass, and that the facts in the case here are much stronger than in the Christopher case by the El Paso *110Court heretofore referred to. We also think that the determination of the question as to whether a service by a city is proprietary or governmental is a judicial function as distinguished from a legislative function. In 30B Tex.Jur. 683, we find this statement of the rule: “To be exempt, the corporation must be performing a duty imposed upon it as the agent of the State, in the exercise of a strictly governmental function.” We think it is persuasive here that the section of the Texas statute under consideration is in the same language as the North Carolina statute. See Chapter 63 of the General Statutes of North Carolina, Sec. 63-50.
In Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, 375, the Supreme Court of North Carolina had before it the consideration of the exact question here, and, in discussing the question, said :
“The interpretation we place on the language of the statute * * * leads to the view that it was the intent of the Legislature to declare that the acquisition, construction, operation and maintenance of an airport by a municipality was a governmental function in the sense that it was a public purpose. Note the language ‘ * * * are hereby declared to be public, governmental, and municipal functions exercised for a public purpose and matters of public necessity’.
“In the light of our own decisions and the other authorities cited herein, we are of the opinion that our General Assembly did not exempt municipalities from tort liability in connection with the ownership and operation of airports by the enactment of G.S. § 63-50, and we so hold.”
See also Caroway v. City of Atlanta, 1952, 85 Ga.App. 792, 70 S.E.2d 126, 130; Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So.2d 153, 172 A.L.R. 1425; Ex parte Houston, Okl.Cr.App., 224 P.2d 281; Granite Oil Securities v. Douglas County, 1950, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069.
Moreover, we think it is significant that the title of Art. 46d-15 is “Public purpose, county and municipal purpose.” It seems to us that if the Legislature had intended actually to exempt municipalities of tort liability in the actual operation and maintenance of an airport, it would have been a very simple matter to have so provided in the caption, or to have laid down a specific rule of non-liability predicated on the public purpose. We must assume that the Legislature had knowledge of the decision of the El Paso Court in Christopher v. City of El Paso, Tex.Civ.App., 98 S.W.2d 394, which had previously held Art. 1269h unconstitutional. We are of the further view that because the caption of Article 46d-15 does not indicate that any such non-liability was intended and because no explicit rule of non-liability was laid down predicated on public purpose, we think that the Legislature did not intend to exempt municipalities from tort liability in the operation and maintenance of airports, but was merely making a declaration of the public purpose, as was done in the identical North Carolina statute.
Our Circuit Court, in the Sweetwater case cited in the. original opinion, places some emphasis on the decision of the Supreme Court of Tennessee in Stocker v. City of Nashville, 174 Tenn. 483, 126 S.W. 2d 339, 124 A.L.R. 345. An examination of the Tennessee statute, Williams’ Code, § 2726.22, which was under consideration in the Stocker case did lay down an explicit rule of non-liability predicated on the public purpose, but declared the construction, maintenance and operation of a municipal airport to be a public governmental function and that no action or suit shall be brought or maintained against any municipality or its officers, servants or employees in or about the construction, maintenance, operation, superintendence or management of any airport.
It is certainly true that prior to the passage of Art. 46d-15, R.C.S., that the operation of a municipal airport by municipal corporations in Texas was a proprietary *111function as distinguished from a governmental function, and that a municipality was subject to liability for any damage occasioned by the negligence of any of its agents or employees while in the discharge of such proprietary function. See Christoper v. City of El Paso, Tex.Civ.App., 98 S.W.2d 394 (writ dis. w.o.j.); McQuillin Municipal Corp. (3rd Ed.) 1950, Vol. 18, Sec. 5396; 6 Amer.Jur., Aviation, Sec. 27; City of Blackwell v. Lee, 1936, 178 Okl. 338, 62 P.2d 1219; Indamer Corp. v. Crandon, 5 Cir., 1952, 196 F.2d 5; Claitor v. City of Comanche, 271 S.W.2d 465 (no writ history) ; Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79; 30B Tex.Jur. 1213, sec. 638; Johnson v. City of Corpus Christi, Tex.Civ.App., 243 S.W.2d 273 (no writ history) ; Wendler v. City of Great Bend, Kan.1957, 316 P.2d 265; Peavy v. City of Miami, 1941, 146 Fla. 629, 1 So.2d 614; City of Mobile v. Lartigue, 1930, 23 Ala. 479, 127 So. 257; Brummett v. City of Jackson, 1951, 211 Mise. 116, 51 So.2d 52; Godfrey v. City of Flint, 1938, 284 Mich. 291, 279 N.W. 516; Mayor & City Council of City of Baltimore v. Crown Cork & Seal Co., 4 Cir., 1941, 122 F.2d 385; Mollencop v. City of Salem, 1932, 139 Or. 137, 8 P.2d 783, 83 A.L.R. 315; Department of Treasury v. City of Evansville, 1945, 223 Ind. 435, 60 N.E.2d 952; Patton v. Administrator of Civil Aeronautics, D.C.Alaska, 4th Div., 1953, 112 F.Supp. 817; Heitman v. City of Lake City, 1947, 225 Minn. 117, 30 N.W.2d 18; Behnke v. City of Moberly, Mo.App.1951, 243 S.W.2d 549; Granite Oil Securities v. Douglas County, 1950, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069; Caroway v. City of Atlanta, 1952, 85 Ga.App. 792, 70 S.E.2d 126; McLaughlin v. Chattanooga, 1944, 180 Tenn. 638, 177 S.W.2d 823.
Finally, it is our view that this court’s original opinion does not in any manner impair the ability of a municipality to perform any of its services that are necessary to be performed in the maintenance and operation of an airport. We think the effect of the opinion is, and it was so intended to be, to prevent a city from having a license to become a tort feasor without being subject to a suit to determine its liability. Our opinion certainly does not hold that the City is liable per se for any of its actions in the operation of an airport, and we certainly did not place, and did not intend to place, any greater duty upon a municipality than it owes at common law in the operation and maintenance of a public park or playground.
Being of such views, we adhere to our former opinion and overrule appellee’s original motion and amended motions for rehearing.