joined by Justices Smith and Walker, dissenting.
Both the majority and the concurring opinions recognize that the case turns upon whether the maintenance and operation of the Corsicana airport, including the rental of space for the storage of aircraft and the burning of weeds, constitutes a governmental function. If it does not, Mr. Wren and others are entitled to a trial on the merits of their case; and if the city is found to be at fault, it will be liable to them.
The problem here resolves itself into three questions:
1. Who is to determine whether the function is governmental? Is the question a legislative or a judicial one?
2. ' If the question is a judicial one, what is the law, in the absence of a legislative declaration, as to whether municipal operation of an airport is a governmental function?
3. If the question is a judicial one, what weight shall be given the legislative declaration?
The majority, in effect, holds that the determination here is essentially a legislative matter with which the courts will not interfere unless the power is wrongfully exercised. The concurring opinion would hold that the question is a judicial one; that the judicial question here is a close one; and that the legislative declaration tips the scales in favor of a judicial determination that the function being performed is governmental. I agree with the concurring opinion that the question is a judicial one. But in view of what I regard as the weight of authority as applied to the particular facts here, the legislative declaration is not sufficient to change the nature of the function from proprietary to governmental.
The first of the above questions is whether the determination of the question at issue is legislative or judicial.
The North Carolina Supreme Court recently had this question before it. The fact situation was comparable, and the statute involved was the same. The Court held:
“Unquestionably the Legislature intended to declare that the operation of the Asheville-Hendersonville Airport should be deemed and held to be in furtherance of a governmental function. But the mere legislative declaration to that effect did not *215make it so, for that is a judicial and not a legislative question. * * * ’1
More recently, the Supreme Court of Nebraska was called upon to decide the question, having before it a similar airport situation and statute. It likewise held:
“We conclude that the distinction between a governmental and a proprietary function of a municipal corporation is a judicial and not a legislative question, and the legislative declaration as to the nature of the authority delegated by the statute is not controlling. * * * ”1 2
As pointed out in the concurring opinion, this Court held in the Texas Turnpike case that whether property was “publicly owned” is a judicial question. If the turnpike properties were publicly owned, they were exempt from taxation. The Legislature declared that they were “public property used for -public purposes.” This Court concluded that under the facts they were not and held that they were subject to taxation. It was there held that:
“* * * * 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 * * * declaration.”3
To hold that the question is legislative leads to very serious constitutional questions. There have been several attempts by the Legislature to grant immunity to municipalities. This Court and others have held many of such acts to be unconstitutional.
The Act now before the Court, Article 46d, Section 13, does not purport expressly to grant immunity to cities from tort liability. It states that the procurement of land by eminent domain and the maintenance of an airport is a governmental function, — and goes no further.
An earlier Texas airport statute did expressly purport to exempt cities from liability for negligence in the operation of an airport.4 The El Paso Court of Civil Appeals held that statute *216to be unconstitutional.5 The majority expressly declines to follow that opinion, and in effect, overrules it on this point. But there are other opinions by this Court which strike down legislative declarations of immunity under the provisions of the Due Processes Clauses and under Section 13 of Article I of the Texas Bill of Rights that:
“* * * every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
The cases say that if a right or remedy existed at. common-law, the legislature cannot absolutely abolish that cause of action and deprive the citizen of his right or remedy.6 The Workmen’s
Compensation Act was upheld though it took away the workman’s common law action for negligence. But the Act gave him an alternative remedy.7
This Court in the Lebohm case held invalid a part of the Galveston city charter which purported to exempt it from tort liability in the operation of its local city streets even though the Legislature expressly authorized it.8 In 1914, the Legislature authorized home rule cities “to provide for exemption from liability on account of any claim for damages. * * * ” The Act was declared unconstitutional. The Commission of Appeals there held that:
“* * * * The Legislature itself is powerless to destroy directly by statute the rights which the city' ordinance purports to wipe out, and the Legislature is equally powerless to authorize the city to destroy such rights.”9
By another statute, the Texas Legislature attempted to grant cities immunity from liability in the operation of its parks. The Act was likewise declared unconstitutional.10
*217If the determination of the function, whether it is governmental or proprietary, is held to be a judicial question, these constitutional issues do not arise- in this case. At stated, the Legislature in Article 46d has not attempted expressly to legislate immunity. It simply has expressed itself that the function is governmental. That is, in my opinion a judicial question. .
The second of the questions above posed is: Assuming the question to be a judicial one, what is the law, in the absence of a legislative declaration, as to whether the operation of an airport is a governmental function?
It seems to me that the weight of authority holds that the function is proprietary.
The rule is stated in 18 McQuillin on Municipal Corporations (3rd ed. 1950) at page 406:
“Although some cases hold that it is a governmental function, the prevailing view is that the operation and maintenance of an airport is a proprietary function, in the performance of which a city may be held liable for the negligence of its agents, the same as a private corporation.”
The annotator in 120 A.L.R. 1379 says:
“It may be laid down as a general rule that, in its operation of an airport owned by it, a municipal corporation acts in a proprietary * * * capacity, and hence is liable for its torts * * * * ” See also Annotation 138 A.L.R. 126.
Fixel in his text on The Law of Aviation (3rd ed. 1948) states at page 198:
“The weight of authority is to the effect that in the operation of an airport by a municipality, it acts in a proprietary capacity distinguished from exercising government functions.”
Lupton finds the rule to be the same in his work on Civil Aviation Law (page 99). See also Rhyne, Aviation Accident Law (1947), 149 et seq. The cases are cited by these authorities. Others are mentioned in the note below.11
*218The holding of the weight of authority that the function is in harmony with Texas cases involving similar municipal functions. In the field of automotive transportation, this Court recently adhered to its long-established holding that the building and maintenance of streets by a city is a proprietary function.12 Even more recently this Court followed prior holdings that the improvement of city streets is a proprietary function.13
It is held that the maintenance of docks and docking facilities by cities for sea transportation is the exercise of a proprietary function.14 No cases are cited and none has been found which extends immunity from liability to any municipally owned railroad or bus stations.
These cases involving transportation are consistent with the holdings in others on related functions of municipalities. Thus this Court has held or approved holdings that a city is not immune from liability in its maintenance or operation of a water system,15, public park,16, storm sewer,17, or in its repair of garbage trucks.18 It therefore appears to me that but for the legislative declaration, we would hold that the function was proprietary.
This brings us to the third question: what weight should be given to the legislative declaration that the function is governmental ?
The declaration of the Legislature is, of course, entitled to respect and serious consideration. But assuming that the rule would be, in the absence of a declaration, that the function is proprietary, the declaration itself is not of sufficient weight to change the function at the Corsicana airport from proprietary to governmental.
*219In judicially determining whether a function is governmental, a large number of factors have been considered. The legislative declaration is another factor to be included in the calculations. But in the light of the decided cases on the maintenance of airports, on other forms of transportation, and on related functions, it is not, in my opinion, decisive. This seems to be particularly true in the light of the modest operations at the Corsicana airport.
The appellate courts of several other states which have this same statute have held, for various reasons, that it does not confer upon cities an immunity from tort liability. These states are North Carolina,19 Iowa,20 Nevada,21 Oklahoma,22 Georgia,23 and Nebraska.24 It seems to me that they represent the majority and the better view. There are cases to the contrary: Van Gilder v. City of Morgantown, 1949, 136 W. Va. 831 68 S.E. 2d 746; Kirksey v. City of Ft. Smith, 1957, 227 Ark. 630, 300 S.W. 2d 257; Imperial Production Corp. v. Sweetwater, 1954, 210 Fed. 2d 917.
During this year, the Supreme Court of Nebraska pronounced what to me is the correct rule in view of the case law previously discussed. After determining that notwithstanding the statute, the question was a judicial one, it concluded.
“* * * in the light of the great weight of authority of the courts of this country that have passed upon the question, the City * * * was performing a proprietary function in the operation of its municipal airport. * * *.”25
This is not to hold that a function which has once been declared to be proprietary cannot become governmental. But if *220the functions do become governmental, they will do so because of the nature of the operations themselves. Such a changed situation is not presented, in my opinion, by the facts and circumstances of this case.
The majority sees a need for governmental regulation of air traffic. I would agree. The regulation of traffic over city streets is a governmnetal function. But this Court has held that the maintenance of the streets themselves is a proprietary function.26
I would affirm the judgment of the Court of Civil Appeals.
Opinion delivered November 5, 1958.
Rehearing overruled Nov. 26, 1958.
. —Rhodes v. City of Asheville, 1949, 230 N.C. 759, 53 S.E. 2d 313.
. —Brasier v. Cribbett, 1958, 166 Neb. 145, 88 N.W. 2d 235, at 245.
. —Texas Turnpike Co. v. Dallas County, 1954, 153 Texas 474, 271 S.W. 2d 400, at 402.
. —Art. 1269h V.A.C.S.
. —Christopher v. City of El Paso, 1936, 98 S.W. 2d 394, writ dismissed.
. —Clem v. Evans, (Texas Com. App. 1927), 291 S.W. 871, 51 A.L.R. 1135.
. —Middleton v. Texas Power & Light Co., 1916, 108 Texas 96, 185 S.W. 556. Compare the opinion of this Court on rehearing in Lebohm v. City of Galveston, 1955, 154 Texas 192, 275 S.W. 2d 951, at 953.
. —Supra, note 7.
. —City of Amarillo v. Tutor, 1924, 267 S.W. 697, at 699, followed by Hanks v. City of Port Arthur, 121 Texas 202, 48 S.W. 2d 944, 83 A.L.R. 278.
. —Claitor v. City of Comanche, 1954, 271 S.W. 2d 465, no writ history, noted 7 Baylor Law Review 326.
. — A recent law review concludes that, “Based upon this examination of the decided cases (including decisions made in the light of statutes), it appears that the large weight of authority holds that the operation, construction, and maintenance of an airport by a municipality constitutes a proprietary function; and as
*218such, the municipality is liable for the torts of its agents, officers, or employees.” Insurance Law Journal, May 1958, at page 303.
For a recent case with a detailed discussion and citation of prior eases see Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265 (1957).
. —Lebohm, v. City of Galveston, 1955, 154 Texas, 192, 275 S.W. 2d 951; noted 33 Texas Law Rev. 1099.
. —City of Austin v. Schmedes, 1955, 154 Texas 416, 279 S.W. 2d 326; noted 34 Texas Law Rev. 144.
. —63 C.J.S., Municipal Corporations, See. 911a, page 326.
. —City of Wichita Falls v. Lipscomb, 1932, 50 S.W. 2d 867, writ refused.
. —City of Waco v. Branch, 1928, 117 Texas 394, 5 S.W. 2d 498.
. —Dilley v. City of Houston, 1949, 148 Texas 191, 222 S.W. 2d 992.
. —City of Houston v. Schilling, 1951, 150 Texas 387, 240 S.W. 2d 1010.
. —Rhodes v. City of Asheville, 1949, 230 N.C. 134, 52 S.E. 2d 371, reh. denied, 230 N.C. 759, 53 S.E. 2d 313, where plaintiff's intestate was shot at the airport as a result of negligence.
. —Brown v. Sioux City, 1951, 242 la. 1196, 49 N.W. 2d 853, where the spraying of the apron of the runway killed the plaintiff's bees, the plaintiff being a tenant of the city at the airport. The Iowa court indicated that some other functions of the airport would be governmental.
. —Granite Oil Securities v. Douglas County, 1950, 67 Nev. 388, 219 Pac. 2d 191, 16 A.L.R. 2d 1069, where planes were destroyed by fire.
. —Ex Parte Houston, 1950, 93 Okla. Cr. 26, 224 Pac. 2d 281, regarding regulations of airport limousines and taxis at the" airport.
. —Caroway v. City of Atlanta, 1952, 85 Ga. App. 792, 70 S.E. 2d 126, involving a “slip and fall” case in the airport waiting room.
. —Brasier v. Cribbett, 1958, 166 Neb. 145, 88 N.W. 2d 235, where a city employee left an obstruction on the runway.
. —Brasier v. Cribbett, 1958, 166 Neb. 145, 88 N.W. 2d 235, at 245.
. — See eases cited supra, notes 12 and 13.