Opinion
No. 37698.
Filed April 9, 1971.
Airports: Municipal Corporations: Words and Phrases. The word "airport" in the clause "any city . . . owning or operating an airport" in the Cities Airport Authorities Act, section 3-502, R.R.S. 1943, means an airport qualified and licensed for public use.
Appeal from the district court for Seward County: JOHN D. ZEILINGER, Judge. Affirmed.
Russell A. Souchek, for appellants.
Byron J. Norval, for appellee.
Heard before WHITE, C. J., CARTER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
Plaintiff, a taxpayer, attacked a resolution by which the city council of the City of Seward had undertaken to establish an airport authority. Seeking injunctive relief, he alleged that the city had not satisfied a statutory condition. The statute has required a city to own or operate an airport before it can create an airport authority. The district court found for plaintiff, declaring the airport authority nonexistent and ordering a permanent injunction. Defendants city, councilmen, clerk, and members of the airport authority appeal.
An airport was built in 1966 by Charles H. Krutz. Having cleared and sodded the strip, he registered it with the Nebraska Department of Aeronautics. He last renewed his registration on February 3, 1969, when in his application he designated the land a personal use airport not open to the public except by prior arrangement. The department designated the airport with the symbol "P" on its aeronautical chart. The symbol represented a personal use airport with emergency facilities only, and an airport that was "Not for public use — possible unreported hazards — user assumes all risk."
Personal use airports were permitted without certificate by the department's practice, and no certificate was issued to Krutz. According to testimony of a department representative no minimum standard existed for a personal use airport. The principal purpose of annual registration requirements was analysis of aviation activity within the state. See Report of the Department of Aeronautics to the Governor (1969).
On April 1, 1969, Seward leased the airport from the Krutzes and also other land from other parties in connection with the airport. The term of each lease was 1 year subject to earlier termination on 30 days notification by either party. The consideration was $1. On April 15, the city council resolved to create an airport authority. On May 6, the city assigned the leases to the authority.
On June 6, 1969, the airport authority applied to the Department of Aeronautics for a municipal license. The application was denied. The land fell far short of satisfying requirements for a municipal airport. According to a department representative, the airport authority was "granted a license for a personal use airport" on June 10.
The department approved a state grant in aid of the authority, and an application for federal aid was pending. Running through the statutes are declarations of public purpose, public need, and federal aid relating to airports. See, 3-102, 3-104, 3-123, 3-147, 3-206, 3-216, 3-218, 3-237, 3-239, 3-504 (14), 18-1506, and 18-1507, R.R.S. 1943.
The Department of Aeronautics Act provided: "(1) For the purpose of the laws of this state relating to aeronautics, the following words . . . shall have the meanings herein given, unless otherwise specifically defined, or unless another intention clearly appears, or the context otherwise requires. . . . (6) Airport means (a) any area of land or water, except a restricted landing area, which is designed for the landing and takeoff of aircraft, . . . . (8) Restricted area means any area of land, water, or both, which is used or is made available for the landing and takeoff of aircraft, the use of which shall, except in case of emergency, be only as provided from time to time by the commission." 3-101, R.R. S. 1943.
The Cities Airport Authorities Act which was the ground of the council resolution provided: "Any city now or hereafter owning or operating an airport is hereby authorized to create an airport authority . . . ." 3-502, R.R.S. 1943. The Revised Airports Act required the licensing of airports and restricted landing areas, except "restricted landing areas designed for personal use." 3-133 and 3-136, R.R.S. 1943.
The Revised Airports Act authorized a bond issue only with electoral approval; yet it provided for taxation to raise money to acquire, construct, and enlarge airports. See, 3-211, 3-213, 17-507, and 18-1502, R.R. S. 1943.
The Cities Airport Authorities Act limited the tax levy to 2 mills, but it empowered an airport authority to incur debt, issue negotiable bonds, and provide for the rights of bondholders. 3-504 (12) and (15), R.R. S. 1943. Electoral approval was unnecessary. See, 3-504.01, 3-507 (2), and 3-513, R.R.S. 1943.
The question is close. The powers conferred by the Cities Airport Authorities Act were greater than were the powers conferred by the Revised Airports Act. The different provisions for issuance of bonds are important. We conclude that the word "airport" in the clause "Any city . . . owning or operating an airport" in section 3-502, R.R.S. 1943, means an airport qualified and licensed for public use. Cf. Title 49 U.S.C. § 1101 (8), as amended by Sept. 20, 1961, Pub. L. 87-255, 8 (a), 75 Stat. 526, now Title 49 U.S.C. § 1711 (12) (1970). The Seward airport did not fall within that definition.
The judgment is affirmed.
AFFIRMED.
SPENCER, J., participating on briefs.