Lillard v. Fairfax County Airport Authority
| Decision Date | 12 June 1967 |
| Citation | 155 S.E.2d 338,208 Va. 8 |
| Parties | R. J. LILLARD et al. v. FAIRFAX COUNTY AIRPORT AUTHORITY. |
| Court | Virginia Supreme Court |
Randolph W. Church, Jr., Fairfax (Hardee Chambliss, Centreville, on brief), for appellants.
Robert C. Fitzgerald, Fairfax (H. Kendrick Sanders, Jr., Fitzgerald & Smith, Fairfax, on brief), for appellee.
Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and GORDON, JJ.
On December 31, 1965, the Fairfax County Airport Authority (Authority) applied to the State Corporation Commission (Commission) for a permit or license to establish, maintain, conduct and operate in Fairfax county an airport for the landing and departure of civil aircraft engaged in commercial aviation. Title 5, §§ 5-1 to 5-14, Code of Virginia 1950 ).
On January 7, 1966, the Commission entered an order which docketed the proceeding, and directed that the Director of the Division of Aeronautics investigate the said application and determine the location of the proposed airport with relation to its proximity to any other airport; the provisions made for the safety of aircraft alighting thereon and departing therefrom; whether the proposed aircraft be so situated as to endanger aircraft using the same or any other airport or landing field in close proximity thereto; and and whether proper provisions had been made in all other respects according to law; and report to the Commission.
The Commission further ordered that Authority give notice of its application by publication in a newspaper of general circulation in Fairfax county, Virginia, notifying all persons objecting to the granting of such permit, or desiring to be heard with respect thereto, to advise the Director of the Division of Aeronautics and the Commission of their objections or desire to be heard.
On February 24, 1966, the Commission entered an order reciting receipt of objections to the application and requests to be heard with respect thereto, and set a hearing thereof to be held on April 6, 1966. Attested copies of the order were sent to Authority, to the Director of the Division of Aeronautics, and to all persons who had given notice of their desire to be heard.
On April 6, 1966, Authority and a number of persons objecting to the application (Intervenors) appeared for the scheduled hearing. Also present were other persons who had been subpoenaed to present evidence. After a representative of Authority had presented its case, and introduced a number of exhibits in support, the Commission ruled that it had no authority to refuse to issue the permit, and that since issuing the permit was purely a ministerial act, the permit would be granted. Commissioner Dillon, presiding, said: 'We are not going to hear the evidence because the appeal will be taken on the legal points and not on the merits of the case; so the permit is granted.'
All exhibits thereupon were withdrawn from the evidence, and an order was entered granting the permit.
On motion of the Intervenors, appellants here, the order was later amended to set out in detail what happened on April 6th, and 'to reflect more completely the decision made on' that date.
In the order of April 6, 1966, this is said:
'(T)he Commission found that the provisions of Chapter 642, Acts of the General Assembly of Virginia, 1964, deprive the Commission of jurisdiction to take any action other than ministerially to grant the permit, no evidence was received and the permit was granted.'
R. J. Lillard and his fellow Intervenors noted an appeal as of right. On appeal, the Intervenors contend that the Commission erred as a matter of law in its ruling that §§ 4(c), 5(g) and 15 of an Act of the General Assembly 1964 et seq., providing for the creation of the Fairfax County Airport Authority (Authority) and defining its duties and powers deprived it of jurisdiction to take any action other than ministerially to grant the permit.
Section 5-8 of Title 5, Code of Virginia, 1950, 1 in effect at the time the application was made, provides as follows:
Fairfax County Airport Authority (Authority) is a political subdivision of the Commonwealth of Virginia, authorized to be created by Chapter 642, Acts of Assembly, 1964, (1964 Act) 2 to construct, maintain and operate an airport in the county of Fairfax under certain conditions. So far as material here, the Act provides that:
'The Authority is hereby authorized and empowered:
' § 4(c) to determine the location of the project, to determine, in its discretion and without reference to any other provisions of any State law, the design standards and the materials of construction, and to construct, maintain, repair and operate the project; * * *
' § 5(g) No property shall be acquired by any method by the Authority without the prior approval of the governing body of the county after public hearing held thereon. * * *
' § 15 All other general or special laws inconsistent with any provision of this Act are hereby declared to be inapplicable to the provisions of this Act.'
Counsel for Authority argues that the provisions of § 5-8 of the Code of 1950 are inconsistent with the provisions of §§ 4(c) and 5(g) of the 1964 Act, and that the two statutes cannot be harmonized or reconciled. He urges that since the 1964 Act gives Authority power to determine the location of the project, to determine the design standards and the materials of construction, and to construct, maintain, repair and operate the project, the only limitation upon its power is that no property shall be acquired by Authority without the prior approval of the board of supervisors of Fairfax county.
We are of opinion that the two statutes can be construed together and reconciled. They are parts of the same general plan and aimed at the accomplishment of the same result.
Code, § 5--8 is a licensing statute, which provides that it shall be unlawful for any person, city, county or department of government to operate any airport without first obtaining a permit therefor from the Commission, and that before issuing such permit, the Commission shall investigate and determine certain safety conditions with regard to the operation of the airport, its location, its proximity to other airports, and whether in the proposed use thereof 'proper provisions have not been made in other respects for the safety of aircraft alighting thereon or departing therefrom.' In the event of unfavorable findings, the permit shall be refused. The reenactment and amendment of Title 5 in 196...
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