Untitled Texas Attorney General Opinion ( 1942 )

HE L'% ORNEY GENERAL
OP%?EXAW
Honorable Dorman Nickels
County Attorney
Wharton County
Wharton, Texas
Attention: Mr. M. S. Munson, Jr.
Dear Sir: Opinion No. O-4972
Re: Would a county or city of the State
of Texas be authorized to acquire
the site for an airport by lease from
an lndivldual; instead of purchasing
same as provided in Articles 1269h,
Vernon's Annotated Civil Statutes,
and related questions?
Your letter of November 4, 1942, requesting the
opinion of this department on the questions stated therein
reads as follows:
"I would appreciate your advising me whether
or not in your opinion, a city or county of the
State of Texas, would be authorized under the terms
of Art. 1269h of the'Revised Statutes, or any other
Statute, to do the following acts;
"(1) Acquire the site for an airport by lease
from an individual, instead of purchasing same as
provided in saia Art. 1269h.
"(2) Appropriate money of such County or City
to pay the rental therefor without a bona issue.
"(3) Erect with County or City money a hanger
upon such premises, and pay necessary maintenance
charges including salaries of guards.
"(4) Acquire and maintain such an airport in
the manner above stated, to be operated,,and managed
by the members of the Civil Air Patrol.
Article 1269h, Vernon's Annotated Civil Statutes
provides in part:
Honorable Dorman Nickels, page 2 o-4972
“Section 1. A--That the governing body of
any Incorporated city in this State may receive
through gift or dedication, and is hereby empowered
to acquire, by purchase without condemnation or by
purchase through condemnation proceedings, and
thereafter maintain and operate as an airport, or
leas’e, or sell, to the Federal Government, tracts
of land either within or without the corporate
limits of such cftg and withln the county in which
such city is situated, and the Commissioners’ Court
of any county may likewise acquire, maintain and
operate for like purpose tracts of land within the
limits of the county.
“B--That the governing body of any Incorporated
city in this State may receive through gift or
dedication, and is hereby empowered to acquire by
purchase without condemnation, ana thereafter main-
tain and operate as an airport, or lease, or sell
to the Federal Government, tracts of lard without
the county in which such city Is situated, provided
said tracts are not within five (5) miles of an-
other Incorporated city that has a population of
more than fifteen hundred (1500) people, according
to the last preceding Federal Census.
“C--That the governing body of any incorporated
city in this State may, ana Is hereby empowered, to
acquire through condemnation proceedings, tracts
of land located without the county in which said
city is located, proviaea saia tracts of land are
within SIX (6) miles of the oountg boundary of the
county in which said city is located, and. are not
within five (5) miles of another Incorporated city
having a population in excess of fifteen hundred
1500) people, aoooraing to the last preceding Fed-
eral Census ; and that said. city may thereafter
maintain and operate as an airport, or lease, or
sell, sala tracts to the Federal Government; pro-
vided, however, that the grant herein made to ac-
quire land through condemnation prooeedings, without
the county in which said city is located, shall
expire on December 31, 1942, but that tracts of
land acquired prior to that date, and under the
authority of this Act, may continue to be oper-
ated, leased, or sold, as provided in this Act.
“D--In addition to the power herein granted,
the Commissioners’ Courts of the several counties
of this State are hereby authorized to lease any
.
Honorable Dorman Nickels, page 3 O-4972
airport that may be acquired by the county, as
herein provided, to any incorporated city or muni-
cipality within such county, or to the Federal
Government, for the purpose of maintaining and
operating an airport; and provided further that
any incorporated city having acquired land for
an airport, or an airport, under the authority
of this Act, shall have the right to lease said
land or said airport to the county in which said
incorporated city is located.
"E--In addition to the power which it may now
have, the governing body of an incorporated city
shall have the power to sell, convey, or lease,
all or any portions of any airports heretofore es-
tablished or that may be hereafter establlshed,
or any land. acquired under the provisions of this
Act, to the United States of America for any pur-
pose deemed by the Government of the United States
necessary for National Defense, or for air mail
purposes, or any other public purpose, or to‘the
State of Texas, or any branch of the State Govern-
ment, or to any other person, firm,or corpqratlon,
to carry out any purpose necessary or incidental
to National Defense or training incidental thereto;
and that such governing body shall provide rules
and regulations for the proper use of any such air-
ports in connection with the purposes stated herein.
As amended Acts 1941, 47th Leg., p. 65, ch. 51,
8 1; Acts 1941, 47th Leg., p. 196, ch. 142,-g 1."
It will be noted that Article 1269h, supra, express-
ly~provides or sets forth the manner that real estate may be
acquired by a city or county for the purpose of an airport,
namely, through gift or dedication, or by purchase wlthout
condemnation or by purchase through condemnation proceedings.
Neither this statute nor any other statute that we
have been able to find authorizes the city or county to ob-
tain or acquire land for the purpose of an airport by a lease
except Article 12693, Vernon's Annotated Civil Statutes which
will be later discussed.
Article 1269h, authorizes a city or a county to
lease an airport after being acquired by a city or a county
to the Federal Government for certain purposes and also au-
thorizes a county to lease an airport to the city and further
authorizes a city to lease an airport to the county. How-
ever, as above stated, we find no provisionexcept as above
mentioned authorizing a city or county to acquire real estate
.
Honorable Dorman Nickels, page 4 0 -4972
by lease from individuals, instead of acquiring the same as
authorized by Article 1269h.
Article 126gj, supra, expressly authorizes any
city having a population of more than 4O,OOO,inhabitants ac-
cording to the last preceding Federal Census.
11. . . to own, maintain and operate an airport,
either within or without, or partially within and
the corporate limits of such
ZrtE~i"t~y E"``~E~ruct acquire by gift, purchase,
leas; or the exercise Af the right of eminent do-
main; improve, enlarge, extend or repair any air-
port, and to acquire by gift, purchase, lease or
the exercise of the right of eminent domain, lands
or rights in lands in fee simple in connection
therewith; (c) to borrow money and issue its bonds
or warrants to finance in whole or in part the cost
of the acquisition, construction, Improvement, en-
largement, extension or repair of any airport; . ...'
It will be noted that the above mentioned statute
authorizes any city having a population of more than 40,000
inhabitants according to the last preceding Federal Census to
acquire real estate by lease for the purpose therein mentioned.
However, as Wharton County has no city having a population of
40,000 inhabitants or more according to the last preceding
Federal Census, said statute is not applicable to said county
therefore, for the purpose of this opinion we do not deem it
necessary to discuss this statute further.
It is well established in this State that a city or
county has only that power or authority conferred by statute
or the Constitution and such power and authority which may
be necessarily implied to exercise the express power and au-
thority given by the statutes or Constitution of this State.
In view of the foregoing it is the opinion of this
department that neither any city having a population of less
than 40,000 inhabitants according to the last preceding Fed-
eral Census, nor any county, is authorized to acquire land
for an airport by lease from an individual, but such land must
be acquired as provided by Article 1269h, supra.
We direct your attention to Article 5248e, Vernon's
Annotated Civil Statutes, which authorizes any city or county
in this State, separately or jointly to acquire lands for the
use of the United States Government, either by a lease for a
term of years or in fee simple title. Said statute further
provides that the lands so acquired shall lie within the limits
. . -
Honorable Dorman Nickels, page 5 o-4972
of the county acquiring same, or if acquired by a city, with-
in the limits of the county in which said city is located;
however, we do not construe your request as pertaining to the
acquisition of lands for use of the United States Government,
therefbre, if we are correct in the construction of your re-
quest, the foregoing statute is not applicable to the ques-
tion under consideration.
As we have in effect answered your first question
in the negative it is not necessary to consider your other
questions.
Trusting that the foregoing fully answers your ln-
.quiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Ardell Willi.3ms
Ardell Williams
Assistant
AW:mp:wc
APPROVED NOV. 21, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman