Southern Airways Co. v. De Kalb County

• Decision Date: 01 December 1960
• Docket Number: Nos. 1,2,Nos. 38038,38060,s. 38038,s. 1
• Citation: 102 Ga.App. 850,118 S.E.2d 234
• Parties: SOUTHERN AIRWAYS CO. v. DE KALB COUNTY. DE KALB COUNTY. v. SOUTHERN AIRWAYS CO
• Court: Georgia Court of Appeals

Page 234

118 S.E.2d 234

102 Ga.App. 850

SOUTHERN AIRWAYS CO. v. DE KALB COUNTY.

DE KALB COUNTY. v. SOUTHERN AIRWAYS CO.

Nos. 38038, 38060.

Court of Appeals of Georgia, Division Nos. 1, 2.

Dec. 1, 1960.

Rehearing Denied Dec. 16, 1960.

Syllabus by the Court.

1. A county owning an airport may properly contract with private parties for operating it, in whole or in part. In so doing, the governing authority of the county is engaged in a proprietary function and may, by such contract, bind its successors in office for a period of years.

2. The present contract having expressly provided that the lessor shall at all times have the right to require the lessee to operate the airport and all its facilities so that they will be available to all members of the general public, including airline transportation companies, without discrimination, does not violate the act of Congress forbidding grants of exclusive rights to use of such facilities upon which federal funds have been expended. 49 U.S.C.A. § 453.

3. Where proceedings for validation of revenue anticipation certificates expressly provided for leasing all or a portion of the county airport, the county has authority to make a contract providing for operation of all or a portion of the airport by a private corporation.

4. Where rental is paid for facilities leased by a county in its proprietary function, a voluntary refund to the lessee by the county of a portion of the rental paid for a period when the United States was in possession to the exclusion of the lessee does not operate as a rescission of the contract.

5. Collateral provisions in a contract, though ambiguous or even indefinite, will not destroy the validity of the contract if the main purpose of the parties is sufficiently clear to be capable of enforcement.

6. A contract by a county granting a usufruct of an airport to a private corporation for a period of years is not a disposition of county property requiring the antecedent resolution of county authorities under Code § 91-602.

7. A provision in a contract requiring a county to furnish water and sewage facilities without charge during fifteen years, to begin at an undetermined future date, is invalid under Code § 69-202, forbidding one council to bind itself or its successors so as to prevent free legislation in matters of municipal government. The invalidity of part of the consideration does not nullify the contract where the contract is severable, Code §§ 20-112 and 20-305.

8. An action for a declaratory judgment that a contract is valid and binding upon the parties and praying for incidental interlocutory equitable relief is not the equivalent of an equitable petition for specific performance of the contract.

The plaintiff, Southern Airways Co., appellant herein, brought its petition for a declaratory judgment against the defendant, DeKalb County. In summary, the petition alleged that the county leased to the plaintiff a described tract of land then known as the Camp Gordon Airport for a period of fifteen years, the lease to begin upon completion of the airport. The petition further alleged that the use and possession of the premises since June 20, 1941, has been in the United States Government, and that there had been payment of rental under the alleged lease, all of which except $1,000 was refunded by the county to the plaintiff, this sum being left as an initial deposit on any rentals which might accrue. Subsequently another lease was entered into between the parties, containing essentially the same provisions as the original lease with its amendments and further providing that the lease term would be for a period of fifteen years with the beginning point of the lease suspended during the period of occupancy by the Federal Government. The other terms of the lease, insofar as relevant to the issues before this court, are discussed in the opinion.

The petition alleged that the premises were still in the possession of the Department of the Navy of the United States Government; that the Navy was about to surrender possession of the premises; and that it was the intention of the defendant upon surrender of the premises by the Department of the Navy to take possession of the premises in contradiction of the plaintiff's rights under the contract. The petition further charged that on the date the Department of the Navy should surrender possession, the petitioner would be entitled to possession. The petition concluded by praying for the following relief: That the court enter judgment declaring the rights of the petitioner to be that the 1943 lease is a valid agreement binding on both parties, that the defendant is entitled to possession and use of the premises upon surrender by the Department of the Navy, for a term of fifteen years, and, further, that the defendant be restrained and enjoined from: (1) accepting surrender of the premises from the Department of the Navy in such a manner or under such circumstances that the petitioner's estate in the premises will then and there commence running; (2) entering into any contract or agreement relating to the use or possession of the premises with any other party; (3) making any physical changes on the premises or buildings or appurtenances thereon; and, finally, (4) doing any act affecting the petitioner's right to full enjoyment of the premises under the provisions of the contract until further order of the court.

The defendant moved for a grant of summary judgment in the case on the grounds that the alleged lease dated October 25, 1940, and the alleged amendment thereto dated July 1, 1943, are both and each invalid, void, and unenforceable, and not binding upon the parties or either of them. After hearing upon the motion for summary judgment, the trial court found that there were no substantial issues of fact as to the terms and manner of execution of the documents relied upon by plaintiff as a lease and amendment thereto, or as to the interest of the United States or the Department of the Navy in the premises. The trial court concluded that as a matter of law the leases referred to are each and both invalid, void, and unenforceable, and not binding upon the parties or either of them and denied the plaintiff the relief prayed, and vacated the temporary restraining order in the proceedings below. The plaintiff duly excepted to this judgment on the ground that it is contrary to law.

The defendant filed a general demurrer to the plaintiff's petition, which was overruled by the trial court, on the ground that this ruling was contrary to law, whereupon the defendant filed a cross bill of exceptions.

Fisher, Phillips & Allen; Moise, Post & Gardner, J. William Gibson, Albert G. Norman, Jr., Atlanta, for plaintiff in error.

George P. Dillard, Decatur, M. H. Blackshear, Jr.; Spalding, Sibley, Troutman, Meadow & Smith, Atlanta, for defendant in error.

BELL, Judge.

The principal issue raised by this appeal is whether the alleged lease entered into between the parties is valid or void. It may be noted that in one of the two previous appearances of this case before the Supreme Court, the contract was held to be in proper form and prima facie valid. Southern Airways Co. v. Williams, 213 Ga. 38, 96 S.E.2d 889. The second appearance of the case before the Supreme Court was occasioned by the granting of a writ of certiorari on the application of Southern Airways Co. to review the majority opinion and judgment of this court in Southern Airways Co. v. DeKalb County, 101 Ga.App. 689, 115 S.E.2d 207, which held in effect that the lease agreement, to become effective upon the happening of an event in the future which might or might not occur within 21 years, no life in being there being involved, violated the rule against perpetuities and was void. In its consideration of the case the Supreme Court held that the lease agreement gave only a usufruct in the premises, not an interest in realty, and consequently, the rule against perpetuities would not apply. Southern Airways Co. v. DeKalb County, 216 Ga. ----, 116 S.E.2d 602. Thus, the view of this court on the point became quite immaterial, and the judgment of this court is vacated. With the settling of this point by the Supreme Court, the case, following customary procedure, was returned to us for consideration and determination of the several issues remaining in contention.

1. The first contention of the county to the effect that this lease constituted an invalid effort by the county commissioner then in office to bind himself and his successors in such a way as to prevent free legislation in matters of county government, we think, is not tenable. There is express statutory authority for municipalities, counties, and other political subdivisions to acquire, own, lease, control, occupy, equip, maintain, regulate, etc., airports and landing fields under the provisions of the Uniform Airports Law (Ga.L.1933, p. 102 et seq.), which is now codified as Chapter 11-2 of the Code. Admittedly, Code § 11-202 provides that any lands thus acquired for these purposes '* * * shall and are hereby declared to be acquired, owned, leased, controlled, or occupied for public, governmental, and municipal purposes.' There is a cleavage of opinion among the states as to whether the quoted language in the Uniform Act makes the owning, controlling, and operating of airports a governmental function of the political subdivision involved, or whether it is a proprietary or non-governmental function so that the political subdivision does not have governmental immunity in matters arising under its authority. See the discussion of the problem in 66 A.L.R.2d 634, et seq., and also Granite Oil Securities v. Douglas County, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069, and Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151. In the absence of express statute, it appears that the general rule in the United States is that political subdivisions operating airports are...