Van Gilder v. City of Morgantown

• Decision Date: 04 February 1952
• Docket Number: No. CC746,CC746
• Court: West Virginia Supreme Court
• Parties: VAN GILDER, v. CITY OF MORGANTOWN.

Page 746

68 S.E.2d 746

136 W.Va. 831

VAN GILDER, v. CITY OF MORGANTOWN.

No. CC746.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 1949.

Decided May 24, 1949.

Dissenting Opinion Feb. 4, 1952.

Syllabus by the Court.

The rental of hangar space for the storage of a privately owned airplane at an airport operated by a municipality under the control and supervision of The West Virginia State Aeronautics Commission as provided by Section 3 of Chapter 12 of the Acts of 1947 is the performance of a governmental function under Section 10 of that Act. The sovereign immunity of the State from suit under Section 35 of Article VI of our Constitution extends to such municipality in the performance of that function.

Ezra E. Hamstead, Hale J. Posten, Morgantown, for plaintiff.

H. William Largent, Morgantown, for defendant.

KENNA, Judge.

This action of trespass on the case in assumpsit was brought in the Circuit Court of Monongalia County by L. J. Van Gilder against the City of Morgantown, seeking a recovery of the value of an airplane destroyed by fire in a hangar at the municipal airport of that city. The alleged cause of action is based upon the breach of a contract of bailment for hire pursuant to which the plaintiff- bailor paid to the City of Morgantown as bailee a monthly rental of $15.00 that entitled him to store and keep his airplane in the defendant's custody at its airport. The declaration alleges that due to the improper care of the bailee the property of the bailor was wholly destroyed so that it was not and could not be returned to the bailor upon demand, resulting in the promises and undertakings of the bailee being violated to the damage of the plaintiff-bailor in the sum of $5,000.

The defendant appeared and filed its written demurrer to the plaintiff's declaration which was overruled. Thereupon the defendant filed a pleading captioned 'Plea and Statement of Defense Number 1', the plaintiff's demurrer to which was overruled, and upon the joint application of the parties the Circuit Court of Monongalia County certified to this Court the following questions:

'1. Does the declaration state a good cause of action?

'2. Under the facts set forth in the declaration and defendant's plea Number 1 is the defendant operating the Morgantown Municipal Airport in a governmental or in a proprietary capacity?

'3. Does the special plea and statement of defense Number 1 show a joint operation of the Morgantown Municipal Airport by the defendant and the State of West Virginia within the purview of Section 10, Article 2A, Chapter 29, of the Code of West Virginia, to such an extent as to afford the City of Morgantown immunity from this action?

Before considering the questions of law which in our opinion arise upon this certification we believe it might be well to quote in part the wording of Code, 58-5-2, being the section that governs certifications of this Court. It reads as follows: 'Any question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading in any case within the appellate jurisdiction of the supreme court of appeals, may, * * * be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back.'

It will be at once observed that the second question certified is based upon the composite allegations of fact in the declaration and the defendant's plea No. 1. The statute does not contemplate certifications of a hybrid nature, but is confined to a 'question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading * * *.' Furthermore, the statute requires that upon certification the further proceedings in the case be stayed until the decision is certified back, thus indicating that the accumulation of questions arising during the course of pending litigation is not proper matter of certification in a lump, but that certification applies only to each step undertaken and to questions arising separately upon each particular pleading, and is intended to apply only to questions concerning which the trial judge entertained serious doubt.

Considering the first question certified as to the sufficiency of the declaration, its allegations are that on the 20th day of August, 1947, the City of Morgantown was engaged in the business of operating for hire and reward a public airport and facilities incident thereto, and that in the course of such business the City of Morgantown violated its contract of bailment for hire with the plaintiff. In all strictness, the questions that arise upon demurrer are confined to the sufficiency of the declaration's allegations of a contract of bailment and its breach. We are of the opinion that it does allege sufficiently a contract of bailment between the plaintiff and the defendant, the City of Morgantown. The declaration alleges that the defendant, while engaged in the business of operating an airport for profit, was paid for the care and custody of the plaintiff's airplane when not in use by him or by persons thereunto duly authorized and that by reason of the improper care thereof by the defendant it was destroyed, to the damage of the plaintiff. This we believe is sufficient. McClain v. West Virginia Automobile Co., 72 W.Va. 738, 79 S.E. 731, 48 L.R.A.,N.S., 561; 6 Am.Jur. 25.

Although the question that follows, in utter strictness, does not properly arise upon demurrer, since the allegations of the declaration alone fairly present it, we believe may be properly discussed. The question is: Can the City of Morgantown be sued for anything done by it in the operation of an airport, or, phrased differently, is the operation of an airport on the part of a municipality the performance of a governmental or of a proprietary function? In our opinion a municipality engaged in the operation of an airport is necessarily, under our present statutes, performing a governmental function. We believe that our Legislature, by unavoidable inference, has so provided.

By Chapter 12 of the Acts of 1947 [Code (Michie, 1947 Supp.) 29-2A-1-28] the Legislature rewrote, in large measure, if not entirely, the West Virginia statutes relating to aeronautics. We are not here concerned with the entire provisions of that act, which was in effect at the time of the injury complained of here, therefore we shall refer only to its provisions which we believe do affect the decision of this case.

The 1947 act repealed the statute creating the 'West Virginia State Board of Aeronautics' enacted as Chapter 4 of the Acts of 1931, and in its stead formed and defined the powers of 'The West Virginia State Aeronautics Commission' to be composed of five members appointed by the Governor in the manner provided by the act. The commission, as an arm of the State Government, is vested with authority to control aviation on a state wide basis, one of the express provisions of section 3 of the act reading as follows: '* * * The commission shall have general supervision and control over all airports used for commercial purposes, all state and municipal airports, all air schools, and over all phases of aeronautics within this state. * * *.'

It was the evident intention of the Legislature to place the control of the operation of all airports and the administration of their affairs within the powers granted the commission. The commission was granted not only joint, but paramount, control of the active operation of all airports within the State, no matter what the ownership or classification. In the sense of equal power the provisions of the act preclude the State from operating an airport 'jointly' with another person. Absolute control is asserted by the State, through the commission, as the exercise of its police power. State ex rel. Board of Aeronautics v. Sims, 129 W.Va. 694, 41 S.E.2d 506.

It appearing that airports are operated under the 1947 act subject so such rules and regulations as the commission may prescribe, the question that then arises is whether that operation is the exercise of a governmental or of a proprietary function on the part of the State. This question has been thoroughly examined by counsel with the result that it seems clear that the weight of authority in other jurisdictions is to the effect that the operation of airports is usually the exercise of a proprietary function. Authorities along this line will be found well collected in Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, decided March 23, 1949. With us, however, the 1947 act contains the following section: 'Sec. 10. The acquisition of any lands or interests therein pursuant to this act, the planning, acquisition, establishment, construction, improvement, maintenance and operation of airports and air navigation facilities, whether by the state separately or jointly with any municipalities, and the exercise of any other powers herein granted to the commission are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity. All lands and other property and privileges acquired and used by or on behalf of the state in the manner and for the purposes enumerated in this act shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.'

Hence, in the absence of a showing of arbitrariness, the power of the Legislature to delegate the immunity of the State from litigation to different agencies and units of government and to declare what is and what is not the exercise of a governmental function is complete, 124 A.L.R. 350; Watts v. State Board Commission, 117 W.Va. 398, 185 S.E. 570, and we are obliged to hold that the City of Morgantown was operating the City of Morgantown was operating the airport here involved State Aeronautics Commission and subject to the...