concurring.
I concur in the judgment entered. Because my approach to the main problem is not the same as that of the majority and my views on the subject discussed are not entirely in harmony with some of the reasoning in the majority opinion, I deem it proper to state briefly the basis of my concurrence.
Liability of the City of Corsicana for the negligent destruction of respondent’s property requires a preliminary determination of the effect to be. given to the pertinent provisions of Articles 46d-15, Vernon’s Annotated Texas Statutes. As pointed out in the majority opinion, Article 46d-15 declares the maintenance and operation of municipal airports to be a governmental function.
The courts of this state have long since laid down the rules for determining whether a particular municipal activity is governmental or proprietary. They are sometimes difficult to apply but they are easy to state. It is well settled that activities which are carried on by a municipality, pursuant to state requirement, in discharge of the state’s obligation to provide for the health, safety or general welfare of the public generally, or which are voluntarily assumed for the benefit of the public generally rather than for the benefit of its own citizens, are performed in a governmental capacity and as a governmental function. City of Houston v. Quinones, 142 Texas 282, 177 S.W. 2d 259; City of Ft. Worth v. George, Texas Civ. App., 108 S.W. 2d 929, writ refused; Gartman v. City of McAllen, 130 Texas 237, 107 S.W. 2d 879; 30-B Texas Jur. 15, Municipal Corporations, Sec. 639. On the other hand, it is equally well settled that all other municipal activities are carried on in a private corporate capacity and are proprietary functions. Dilley v. City of Houston, 148 Texas 191, 222 S.W. 2d 992; City of Houston v. Quinones, supra; City of Houston v. Shilling, 150 Texas 387, 240 S.W. 2d 1010, 26 A.L.R. 2d 935.
Whether a particular municipal activity is performed as a governmental or proprietary function is a judicial and not a *212legislative question. Rhodes v. City of Asheville, 230 N.C. 759, 53 S.E. 2d 313; Brasier v. Cribbett, 166 Neb. 145, 88-N.W. 2d 235. The courts have prescribed the legal tests for determining the governmental or proprietary character of municipal activities and only the courts may properly determine whether and how a given activity meets its own tests. We had an analogous situation before us in Texas Turnpike Co. v. Dallas County, 153 Texas 474, 271 S.W. 2d 400. In that case we had to decide whether property acquired by the Turnpike Company was “publicly owned” so as to be exempt from taxes under Section 9 of Article XI of the Constitution. By statute the Legislature had declared that “the equitable, beneficial and superior' title to the property shall be vested at all times in the State of Texas and shall constitute public property used for public purposes * * *.” We nevertheless held that the property was not “publicly owned” and said: “Public ownership, for tax-exemption purposes, must grow out of the facts; it is a legal status based on facts, that may not be created or conferred by mere legislative, or even contractual declaration. If the state does not in fact own the taxable title to the property, neither the Legislature by statute, nor the petitioner and the authority by contract, may make the state the owner thereof by simply saying that it is the owner.” 271 S.W. 2d 402. So here, the Legislature cannot declare a particular municipal activity, even a novel one, to be a governmental activity when it is clear that it is performed solely for the benefit of the local citizenship. On the other hand, when the nature of the activity is doubtful and its classification has not been determined by the judiciary, the spirit of harmony between the three branches of our government which is so essential -to its existence requires that a classification made by the Legislature be given great weight by the courts.
• As is pointed out in the majority opinion, municipal operation of airports has not heretofore been authoritatively classified by the judiciary of this state as either a governmental or a proprietary activity. The overwhelming majority of the courts of other states classify it as a proprietary activity. See cases annotated in 138 A.L.R. 126, et seq. Some courts compare municipal operation of airports to municipal operation' of wharves. Dysart v. St. Louis, 321 Mo. 514, 11 S.W. 2d 1045, 62 A.L.R. 762; Coleman v. Oakland, 110 Cal. App. 715, 295 Pac. 59. It would be difficult, indeed, as respondent suggests, to distinguish between municipal operation of airports and municipal operation of wharves or railway and bus depots. But it is unnecessary for us to decide what weight or effect we would give to a legislative act classifying municipal operation of wharves or railway and *213bus depots as governmental.activities, and it is accordingly unnecessary to attempt the distinction.
If the question had reached us before the enactment- of Art. 46d-15, the decisions of other state courts of last resort would be most persuasive with me, particularly since they are in harmony with our declared policy of refusing to extend the doctrine of municipal immunity from liability for torts. City of Houston v. Shilling, 150 Texas 387, 240 S.W. 2d 1010, 1012; City of Austin v. Schemedes, 154 Texas 416, 279 S.W. 2d 326, 329. On the other hand, I can see a far greater benefit to the public generally from the erection, operation and maintenance of airports than from the operation and maintenance of streets, power plants, waterworks, storm sewers, etc., which are classic examples of activities primarily performed for the benefit of the local citizenship. City of Galveston v. Posnainsky, 62 Texas 118; Greenville v. Pitts, 102 Texas 1, 107 S.W. 50, 14 L.R.A. N.S. 979; City of Wichita Falls v. Lipscomb, Texas Civ. App., 50 S.W. 2d 867; writ refused; Dilley v. City of Houston, supra.
Airports, whether large enough to accommodate the tremendous airliners, transporting vast numbers of passengers all over the globe, which touch the ground only briefly at our cities to receive and discharge passengers and gather fuel, or only large enough to accommodate private planes transporting two or three people, undoubtedly serve the general welfare of a great segment of'the public not resident at their sites. I cannot say that municipal airports are erected, operated • and maintained solely, or even primarily, for the benefit of local inhabitants, or even that they are not operated and maintained primarily for the benefit of the public generally, and I am therefore inclined to give controlling weight to the legislative classification and hold municipal operation and maintenance of airports to be a governmental activity, performed as a governmental function. It is well settled that a city is not liable for injuries resulting from the negligence of its employees while engaged in work in furtherance of a governmental function. City of Wichita Falls v. Robison, 121 Texas 133, 46 S.W. 2d 965; 30-B Texas Jur. 9, Municipal Corporations, Sec. 837. The provisions of Section 3 of Art. 1269h are therefore immaterial to a decision of the case, and Lebohm v. City of Galveston, 154 Texas 192, 275 S.W. 2d 951 has no pertinency.
For the reasons stated 1 agree to the judgment entered.
■ Opinion. delivered October 29, 1958.