City of Dallas, Texas v. Southwest Airlines Co., 73-2478.

• Citation: 494 F.2d 773
• Decision Date: 24 June 1974
• Docket Number: No. 73-2478.,73-2478.
• Parties: The CITY OF DALLAS, TEXAS, the City of Fort Worth, Texas, and the Dallas-Fort Worth Regional Airport Board, Plaintiffs-Appellants, v. SOUTHWEST AIRLINES CO., Defendant-Appellee, and Texas Aeronautic Commission, Intervenor-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

494 F.2d 773 (1974)

The CITY OF DALLAS, TEXAS, the City of Fort Worth, Texas, and the Dallas-Fort Worth Regional Airport Board, Plaintiffs-Appellants, v. SOUTHWEST AIRLINES CO., Defendant-Appellee, and Texas Aeronautic Commission, Intervenor-Appellee.

No. 73-2478.

United States Court of Appeals, Fifth Circuit.

May 31, 1974.

Rehearing and Rehearing Denied June 24, 1974.

N. Alex Bickley, City Atty., Dallas, Tex., for City of Dallas.

S. G. Johndroe, Jr., City Atty., Fort Worth, Tex., for City of Fort Worth.

Lee E. Holt, Charles C. Wells, Asst. City Attys., Dallas, Tex., for Dallas-Fort Worth Regional Airport Bd.

John L. Hauer, Michael Caolo, Jr., Robert E. Goodfriend, Dallas, Tex., Herbert D. Kelleher, John T. Behrendt, San Antonio, Tex., for Southwest Airlines Co

John Hill, Atty. Gen., Rex H. White, Jr. Asst. Atty. Gen., Austin, Tex., for Tex. Station Aeronautic.

R. S. Maurer, Robert S. Harkey, Atlanta, Ga., for Delta Air Lines, Inc., amicus curiae.

Richard A. Lempert, New York City, for American Airlines, amicus curiae.

G. Edward Cotter, Los Angeles, Cal., for Continental Air Lines, Inc., amicus curiae.

Sam Coats, Houston, Tex., for Texas International Airlines, Inc., amicus curiae.

Paul Rodgers, Sumner J. Katz, Washington, D. C., for Nat'l Assn. of Regulatory Utility Commissioners.

Before ALDRICH, Senior Circuit Judge,^* and BELL and GEE, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 24, 1974.

GEE, Circuit Judge:

This is a suit for declaratory judgment brought by the cities of Dallas and Fort Worth and their joint agent, an airport board created by intercity compact, to determine their right to close Dallas' Love Field to scheduled passenger service by a state-certificated, intrastate commuter line, Southwest Airlines Co. From a judgment that, so long as Love Field remains open as an airport, appellants may not exclude Southwest from it, plaintiffs appeal. We affirm.

Dallas and Fort Worth, large cities in north-central Texas about thirty miles apart, have been rivals over the years. Perhaps partly as a result of this, each developed its own airport. These lie more or less between the two cities and are themselves only twelve miles apart. In consequence of federal Civil Aeronautics Board hearings commenced in 1962, the cities were given to understand that, if they were unable to agree within a reasonable time on a single port for interstate air service to the Dallas-Fort Worth area, the CAB felt obliged to designate one.

The handwriting being thus upon the wall, the cities found themselves, after all, able to agree. In due course, and with CAB blessing and encouragement, they constructed a new airfield and persuaded all interstate, CAB-certificated carriers then serving the area to agree to move their services there.¹ Southwest, an intrastate commuter line certificated by the Texas Aeronautics Commission to serve Love, did not agree and has refused to move. By various ordinances, the validity and effect of which is our concern here, Dallas has sought to compel Southwest to vacate Love Field.²

Were Love Field a private airfield, constructed without public funds, it may be assumed that its owner could exclude anyone he liked. Love, however, received substantial federal assistance and therefore must ". . . be available for public use on fair and reasonable terms and without unjust discrimination; . . . ." 49 U.S.C. § 1718(1), formerly 49 U.S.C. § 1110. In addition, the Supreme Court of Texas long ago held that a Texas Home Rule municipality might not, by denying to common carriers use of its streets built in part at state and federal expense, interfere with their use of state highways passing through the city. Such actions were seen, in their extra-municipal effect, as going beyond the power of local government. City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829 (1927); City of Fort Worth v. Lillard, 116 Tex. 509, 294 S.W. 831 (1927). The analogy seems close and valid.

Appellant cities urge that reasonable classification of uses — as distinguished from selection of users — does not constitute unjust discrimination.³ We assume, without deciding, that this is so.⁴

If so, the question becomes, as to Texas intrastate flights, who is to make these just discriminations by use-classifications?⁵ It has a simple answer. In a recent decision, the Texas Supreme Court had occasion to consider the powers of the Texas Aeronautics Commission. It first correctly noted:

In all matters of flying safety, such as the air worthiness of the aircraft and the skill of its operators, Air Southwest would be regulated by the Federal Aviation Agency. All Air Southwest aircraft and pilots would have federal certificates. However, by flying only in intrastate commerce and by not interlining with any CAB certificated carrier, making no connection for passengers or baggage, Air Southwest will not require a certificate from the federal agency in charge of economic regulations, the Civil Aeronautics Board. Congress has not pre-empted the field of the economic regulation of air carriers, and the states have the power to act so long as there is no conflict with federal law. 49 U.S.C.A. § 1301(3) and (10), and § 1371; Western Air Lines Inc. v. California, 42 Cal.2d 621, 268 P.2d 723 (1954), cert. denied, 348 U.S. 859, 75 S.Ct. 87, 99 L.Ed. 677; see Island Airlines, Inc. v. C.A.B., 331 F.2d 207 (9th Cir. 1964); Island Airlines, Inc. v. C.A.B., 363 F.2d 120 (9th Cir. 1966); Comment, 47 Texas L.Rev. 275 (1969).

Our Brethren of the District of Columbia Circuit emphatically agree and have so held in a case involving this general controversy. Texas Int'l Airlines, Inc. v. C.A.B., 154 U.S.App.D.C. 113, 473 F. 2d 1150 (1972). And having determined that regulatory power over Texas intrastate air carriers still reposed with the State of Texas, the Texas Court further noted:

The decision as to where the public interest lies and what air service is best for Texas must be made by the Texas Aeronautics Commission.

Texas Aeronautics Comm\'n v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex. Sup.1970).

The power to designate "routes" has, from times antedating any relevant to this case, been confided to that Commission.⁶ It seems self-evident that points of origin and destination are part of every "route," particularly short-haul ones.⁷ Indeed, to hold that a city could deny the use of public facilities to an airline certificated to it by the Texas Aeronautics Commission would cripple, if not destroy, the Commission's powers to control intrastate routes.⁸ Any city having only municipal airports would have an absolute veto power over routes to and through it — routes which involve the convenience and necessity of the state public, not merely that of the city. And a partial veto would exist even where other facilities existed. Southwest has been certificated by the Commission into Love Field and directed to continue service there until told otherwise. At a minimum, this constitutes Texas' exercise of its power to determine that Southwest's is not an improper use of Love Field. Dallas being Texas' creature, it may not declare otherwise.⁹ The cities' road to relief passes by the Texas Aeronautics Commission. They cannot reroute it by enacting ordinances in varying forms of words on a subject which is beyond their powers.¹⁰

Other grounds are urged in support of the judgment of the court below, including the asserted discriminatory effect on Southwest of the 1968 Regional Airport Concurrent Bond Ordinance noted at footnote 2 above and the effect of covenants in outstanding airport revenue bonds that Love will be kept open for scheduled airlines and general use so long as the bonds are unpaid. In view of our disposition of the case, we think it unnecessary to discuss these.

Affirmed.

* Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

1 Despite its contract, Braniff has refused to close operations from Love, and Texas International has now reopened there under...