Miljack, Inc. v. City of Tulsa

ADAMS, Judge,

dissenting:

As I read 47 O.S.1981 § 1-122, the airport road is a “highway” only if it is both “publicly maintained” and “open to the use of the public for purposes of vehicular travel.” Although I agree with the majority that the undisputed facts establish the second of these requirements, I cannot agree this record shows the road to be “publicly maintained.”

When engaging in a private, proprietary enterprise a municipality conducts that enterprise as a private concern, and not in its governmental capacity. In so doing, its actions are governed “largely by the same rules applicable to individuals or private corporations engaged in the same business.” Fretz v. City of Edmond, 66 Okl. 262, 168 P. 800 (1917). See also City of Pawhuska v. Pawhuska Oil & Gas Co., 118 Okl. 201, 248 P. 336 (1926). This rule is not without limitation. For example, even when operating a public utility, a proprietary function, a municipality is bound by the debt limitations contained in Article 10, Sections 26 and 27 of the Oklahoma Constitution. See Public Service Company v. City of Tulsa, 174 Okl. 58, 50 P.2d 166 (1935) and City of Pawhuska v. Pawhuska Oil & Gas Co., 118 Okl. 201, 248 P. at 338-339. However, in so doing, the municipality is not necessarily governed by statutory taxation and appropriation requirements. City of McAlester v. State, 195 Okl. 1, 154 P.2d 579 (1944). A municipality acts in its proprietary capacity in owning and operating an airport. City of Blackwell v. Lee, 178 Okl. 388, 62 P.2d 1219 (1936).

The majority apparently concludes the distinction between governmental and proprietary acts is insignificant in determining whether the airport road is “publicly maintained.” My review of the law leads me to conclude otherwise, and I respectfully dissent.