*1 Jackson, Miss., Lewis, for C. Roland plaintiff-appellant. ANDERSON, Jr., minor, By James L. DOSS, Through James H. Uncle Gerity, Thomas Eager, & C. Watkins Friend, Plaintiff-Appellant, and next Miss., Jackson, defendant-appellee. AIRPORT MUNICIPAL
JACKSON
AUTHORITY, Defendant-Appellee. 78-2457.
No. ANDERSON, THORNBERRY, Before Appeals, Court of United States CLARK, Judges. A. Circuit and THOMAS Fifth Circuit.* Nov. 1982. PER CURIAM: this case consideration of previous our (1981), we certified
in 645 F.2d
Su-
questions to
following
permit-
to its Rule 46
preme
pursuant
ting
procedure:
in the
Au-
(1)
the omission
Did
any provision
Law of
thorities
of law
in effect
rule
in tort continue
Jackson,
v. City
Brummett
inferred from
(1951),
So.2d
suit
no
from
airport authority has
corporate func-
proprietary or
arising out of
so,
supplying
are
allegations
tions? If
purposes suffi-
equipment for maintenance
cient
such functions?
to describe
(2)
questions
the above
the answers to
If
what
negative, of
effect on
are in the
enactment of the amendment
case was the
61-3-15(b)?
does
Specifically,
to §
61-3-15(b) authorize suits
amended §
accruing prior
the amend-
tort
claims
enactment, subject only to statutes
ment’s
otherwise applicable?
limitations
Cir.,
See also 5th
EXHIBIT A and maintenance the airport. of The has corporation thus formed officers IN THE SUPREME COURT OF MISSISSIPPI corporation and the exercises all normal airport responsibilities operation, in 53,194 NO. hiring firing employees, such as and con- tracting airlines, with concessionaires and A ANDERSON, JR., MINOR, JAMES L. BY AND H. DOSS, THROUGH JAMES and other commercial and related activities UNCLE AND NEXT FRIEND operated along with airport the normal ac- instance, here, tivities. For the appellee otherwise, or by operates either contract MUNICIPAL AIRPORT AUTHORITY JACKSON restaurant, airport facility a an alcohol- motel, dispensary bar, ic selling En insurance Banc. stands, agency, concession car agen- rental BOWLING, Justice, for the Court: cies and other such activities —all of which opinion pursuant presumed This bring profit is issued to Missis are sippi Supreme airport. City Court Rule 46. For The clarifica of Jack- tion and we attach son is not a in this brevity, hereto аs defendant case. The Ap pendix corporate entity up “A” the entire text defendant is the set certifica Law, tion from the even Appeals Airport though for the Authorities Fifth Circuit.** of Jackson owns land on which airport and its facilities are located and begin We premise with the initial necessary took the action to set up the the case law from this Court is that corporation under the said entity statute. by municipality corporate or activity im- We are not in this case with the involved munity granted from tort is not “Municipal Airport Law” set out above. municipality. Jackson, Brummett v. Jackson chose proceed (1951); 211 Miss. So.2d and City under that statute. Brummett, of Jackson v. provision only touches on the (1955). So.2d 827 This definite principle has questions the Court of Appeals certified Court, not been overruled this and we Airport Authorities Law is set out in decline do so here. MCA 61-3-83 The section § As stated the certification from the injured appellant August time was Appeals, Court of Mississippi Legisla- read as follows: during ture passed 1958 session two land, acquisition any or interest whereby statutes a municipality under ei- therein, pursuant chapter, ther statute could set up, and main- establishment, planning, acquisition, de- airport. tain an separate One and distinct construction, improvement, velopment, statute styled “Airport was maintenance, regu- equipment, operation, Laws, Law” Mississippi Chapter [1958 protection of airports lation and and air MCA 61-3-1 et seg.] sepa- and the other § facilities, navigation including acqui- passed during rate and distinct statute hazards, sition or elimination of entitled, same session “Municipal Air- any and the other powers exercise port Laws, Law.” Chap- [1958 chapter to granted in this authorities ter et MCA 61-5-1 seg.] severally or public agencies, other be exercised, Basically, jointly hereby Authorities Law are declared to functions, authorized municipality to create a munic- be ex- ipal airport authority corpora- whereby public purpose, ercised for a and matters construction, tion public necessity. would formed for the other All land and ** Note: Editor’s The text of the herein. certification ap- at 645 F.2d and is not pears duplicated construction, maintenance, enlargement, used рrivileges acquired property manage- superintendence operation, authority any behalf of or other naviga- airport or other air and for the ment
public agency
the manner
facility.
chapter
in this
shall
purposes enumerated
hereby
acquired
declared to
legal
to the
issues
Although not material
and used for
*3
involved,
Airport
pro-
Act
the
Authorities
neces-
purposes
public
and as a matter of
may
or be
authority
the
sue
that
vided
sity.
has no
Airport Act
Municipal
The
sued.
only in
This is material
provision.
district court
Appellee contended in the
two
legislative intent when the
Court,
considering
although
this
no
and contends before
adopted.
the
acts were
cross
was taken from
district
appeal
on
as hereinafter
point
court’s decision
this
discussing
in
district court
The federal
related,
a
quoted
that the above
section was
Authorities
[Airport
MCA 61-3-83
§
Law]
operation
the
of
legislative mandate that
stated:
by
Municipal Airport
the airport
Jackson
Legislature
had
If
the
corpo-
was not a
or
Authority
proprietary
61-3-83,
MCA
language
the
of
deemed
§
Airport
in the
activity.
rаte
Nowhere else
alone, as
to con-
when viewed
sufficient
pronounce-
is
any
Authorities Law
there
airport authori-
immunity upon
fer tort
ment,
indirect,
or
that would
either direct
ties,
legislature supply
why
then
did the
law in
prevailing
bear on the
case
effect
in the
express grant
immunity
an
of
prior
opinions
this Court.
the
cited
of
paragraph of MCA 61—5—47?
§
second
court,
rather
lengthy
The
in a
district
opinion, specifically held that MCA 61-3-
§
MCA 61-3-83
opinion
In the Court’s
§
proprietary
the
83 was not a directive that
immunity,
true
grant
is
a
of
but its
not
airport
changed
the
was
character of
Rho-
is not hard to find.
In
construction
“governmental
is
function” as
term
Asheville,
of
N.C.
des v.
[230
134]
governmental
in
with
considered
connection
(N.C.1949),petition
rehear-
S.E.2d 371
municipalities.
of
ing denied
N.C.
S.E.2d
759]
[230
Imperial
in
case cited
the Court
the
stopWe
here and refer to the other stat-
Sweetwater,
Corp.,
of
Production
[v.
[Municipal Airport
passed by
ute
Law
the
(5th Cir.) supra, the statute
We found no appel- decision and the simple cussed. It would been have matter lants have cited none in which any court to have the paragraph added of last resort MCA country in this has held that in Municipal 61-3-83 it did construction, Air- § operation, and mainte- port Law in MCA 61-5-47. One reason airport § nance of an by municipality is a out in stands addition to other governmental function and that munici- reasons would be that in the Municipal Air- palities may be not held liable in tort for port Law the be municipality would negligent operation thereof, except defendant in tort the Airport actions and in they where been expressly exempt- have Law, corporation Authorities set up liability ed from such by statute. through office Secretary of the of State The North Carolina Supreme Court then defendant, although would be the sole con- in discussing statute, that state’s almost principal by trolled in municipality. 61-3-83, identical to MCA said fol- § The paragraph last MCA 61-5-47 lowing: § was legislature enacted the same day interрretation place we on the lan- Act, 61-3-83 was § guage of the statute upon which the de- so, enacted. this is we conclude Since are relying fendants immunity, leads legislature thought immunity para- to the view that it was the intent of the graph was their necessary express inten- Legislature to declare acquisi- otherwise, immunity. tion of hold To tion, construction, operation and mainte- contends, deference the appellee as is only nance of an by a municipality was say vain, legislature that the did a foolish a governmental function in the sense that repetitious act the immunity para- it public was a purpose. Note the lan- graph that concludes 61-5-47 as herein- § guage the statute: “The acquisition, before quoted. The words of the paragraph establishment, construction, enlargement, * * * appear to have been chosen deliberately improvement, maintenance and the have some is purpose. It not the inadver- exercise of powers other herein tent omission of a word the scrivener granted municipalities, hereby de- legislature neither do we think the clared to bе public, governmental intended to be language considered un- functions exercised for a appellee necessary as contends. purpose and matters of public necessity.” light of our own decision judgment legislature and the In our intended herein, other authorities cited immunity we are of language pur- to have some opinion that our Assembly pose General purpose if that intention or does did not exempt municipalities tort from lead to an unreasonable result we stat- contained in earlier language them a by giving the words
should honor
violation of the
liability for
imposing
utes
The Brummett cases su-
fair construction.
This
was deleted.
“Chapter”
some
“Act” or
were
this Court
pra,
announced
insert-
a statute
legislative
may not amend
prior to the
years
three or four
liability where
legis-
personal
theory
provisions
and at least in
ing
enactments
done so.
clearly has not
of this Court’s
lature was aware
city
that “the
which stated
that if the court
to follow
It would seem
govern-
corporate
in a
and not
acting
by in-
into a statute
liability
write
cannot
in-
Had
capacity.”
mental
personal
serting provisions
appel-
as
uniformity in the statutes
tended
as
paragraph
it could not strike
surely
easily
could have been
suggests,
lee
uniform-
meaningless to establish
immunity stat-
accomplished by adding the
that courts will
it is axiomatic
ly. We think
it from
deleting
ute
61-3-83 or
to MCA §
act to be without
not construe
as well
gaining uniformity
61-5-47
MCA §
purpose may
reasonable
if some
effect
would have
liability.
hypothesis
Either
to it.
fairly attributed
thing for the
easy
been an
and reasonable
the case seems to be
problem
they
to do had
desired uniform-
the words “declared
attached to
they
Instead
ity.
they
But
did neither.
61-3-83.
in MCA
governmental”
statute in one act
included the
committed to
presently
This Court
other, leading
it from the
us to
and omitted
im-
sovereign
doctrine of
judicially imposed
*5
they
did not intend uni-
the conclusion
municipal corporations,
but as to
munity,
formity
but
intended the
rather
viz,
whether
qualification,
there is a
Act,
61-3-83,
to come
MCA §
damages
plaintiff
to a
resulting
the Mu-
within the Brummett decisions and
“proprietary.”
or
“governmental”
is
61-5-47,
Act,
nicipal Airport
MCA
be
§
court,
by
chosen
two words are
liability
withdrawn from
set forth in Brum-
These
have a
themselves
legislature
this the
not because the words
accomplish
mett. To
those
meaning;
rather
immunity in MCA 61-5-
inherent
granted specific
special
designate
the courts to
47.
are chosen
terms
the activities for
categorize
general
or
(Miss.
King,
v.
Entrican
So.2d
may be civil-
corporation
municipal
which a
1974), we held:
liable,
for which it will not be
ly
and those
given
will
Language used in a statute
be
words
other
civilly responsible. Sometimes
meaning,
possi-
usual
if
ordinary
its
used,
stay with these.
are
but we will
ble, and there must be accorded to the
broad, very gener-
are
in mak-
The classifications
Legislature
purpose
a reasonable
al,
quite
the two is
Moreover,
and the line between
ing
it must be
amendments.
define. Neverthe-
frequently difficult
to
that amendments are inten-
considered
them,
less,
are certain activities
made,
there
tionally
making
and that in
“governmental”
choose to call
purpose
had some rational
courts
wrongful
imposed
is
imposed which no
personal liability
in view. The
are activities or
conduct. These
is restrict-
or tortious
for violation of section 9118-10
required by
is
ed,
municipality
which a
language
in the
services
plain
contained
perform.1
to
engage
section.
law to
in and
section itself to violations of that
state
Smith,
1975); (police
(Miss.
following
“governmental”
de-
2. The
aof
walks,
areas, City
streets or neutral
of Hatties
Meadows,
394,
of West Point v.
236 Miss.
110
443,
Hillman,
burg
368
v.
222 Miss.
76 So.2d
(1959);
372
So.2d
the construction and mainte
(1954);
operation
landings
of
in
the
river
sewage
building,
nance of
outlets to and from
bоats,
gress
egress by
City Vicksburg
of
v.
and
Semple
City
Vicksburg,
63,
v.
of
62 Miss.
Scott,
572,
(1934);
151
914
the
168 Miss.
So.
(1884);
repairing
the maintenance
and
of
bridge
of a
over
construction and maintenance
streets,
Booneville,
Warren v. Town of
151
street,
gully
a
ditch near a sidewalk or
Har
or
457,
(1928);
Miss.
Therefore, may concerns an though even statute Municipal Airport as Act. purely proprietary refer to some under public necessity, or good, public in the as a had no Judge District The United States character, is our view difficulty reaching this conclusion. their using is the words in Indeed, from there have been decisions context, use of justification broader as a jurisdictions highest in which their sister operation, in their and not the public funds Courts, solely language with faced special meaning they in which are used having Act, and not immunity. tests determine court cases as with a be fortified good fortune Indeed, that the let us assume here, as we have comparison of two statutes considering which will authorize statute airports nevertheless held public municipalities engage some governmental. and to be function, grant and wishes to North We heretofore have discussed the city Would áctivity. from suit for such Rhodes, supra. Nevada case of Carolina pro- case simply not the in such county act municipal or also has а im- specifically city shall be vide and language almost identical to ours suit, remove matter mune from so as to Securities, Carolina’s. Granite Oil North question, inserting from rather than 388, 219 Douglas County, 67 Nev. Inc. “governmental” random word somewhere 191, 16 (1950), the Neva P.2d A.L.R.2d 1069 authorizing in a series of words or describ- act, Supreme considered da speculation invite ing Why function? Act,” Airports provid “Municipal entitled when the matter can be made certain? land exercise ing acquisition that the and something sovereign immunity is Since thereunder, hereby “... powers our entirely by which has been created and public declared to (not legislature or courts the Constitu- functions, public purpose, exercised for further, tion), the determination of and necessity; ... public and matters municipal “proprie- whether a function is govern public are declared to be ... or has been tary” “governmental” likewise all provided act further mental.” The the sole then responsibility judiciary, ac property privileges land other view, least, spe- in our the absence of a any municipality quired by and on behalf of legislature grant- cific statement from thе in the agency other manner public ing the statute indicates act for the enumerated purposes legislative intent leave to the Court hereby declared to be “... shall and are determination whether govern used acquired “proprietary” “governmen- function is ne as a matter purposes mental tal.” *7 and, county cessity, in case grant immu- legislature If the choosés to pur county municipal municipality, activ- nity city purely proprietary for a poses, respectively.” which ity, by stating it can do so in the act argued that it was there Again,' that shall activity city authorizes the in constituted a declaration words the act any activity. be subject not to suit for immunity. Supreme The Nevada sovereign with legislature, Because the our re- rejected argument, primarily this mind, fit to in Brummett fresh on its saw the North Carolina lying on decision of Municipal Act flatly Airport state in Rhodes, supra. in Supreme Court suit, from but city that immune in the experience Both referred to cases Au- provision Airport omitted from this Tennessee, in which the Act, how there other thorities can only govern- airport was not declared legislature intended conclusion but that the statute, en- municipalities mental but airports effect Brummett to remain in as to Act, statutorily specifically therein were gaged the Airport created under Authorities inference suit. The granted immunity as it from abrogate but Brummett insofar
749
in both the Rhodes
prohibition against
and Granite Oil
The omission
this
Securi-
ties cases was that if the legislature
Airport
Act,
intend-
suit from the
en-
immunity
ed the function to have
it would
acted on the same date in the same legisla-
act,
specifically granted
have
it
session,
pregnant
tive
is
with meaning.
simply
“governmen-
not
use of
word
What does this omission mean? What
Nashville,
tal.” See
Stocker
mean,
can it
other than
that
339,
Tenn.
126 S.W.2d
750 any want of negligence, ... courts a cu- caused adopted by American “make skill, of part any of care lack or immunity respon- and patchwork
rious
of
Board
of Commissioners’
governing
correctly states
sibility.” Plaintiff
officer,
employee
or
Court,
agent, servant
weight
authority supports
of
to the
...
person
or other
reference
operation
of a munic-
proposition
conduct, maintenance of
management,
or
airport
function.
ipal
proprietary
thing
any
of
any
Air Port
...
However,
indicated, the
as the trial court
whatever,
therein or
character
located
so hold
also
jurisdictions
same
which
have
therewith.
connected
waterworks,
operation
light
of
found
municipalities
to
plants
swimming pools by
and
munici- This act also authorized
condemn land
function,
acquire
airports,
land for
to
to be a
while
pality
proprietary
operate
for
maintain
purpose,
contrary.
(Emphasis
our cases are to the
taxes to
airports,
levy
bonds and
to issue
added).
end,
necessary
all
for
things
and to do
Arkansas,
following municipal
In
purpose.
this
“govern-
have
considered
functions
been
1933,
was an
at the El
In
there
exhibition
streets, Ris-
city
mental”: maintenance of
was
plaintiff
at which the
in-
airport
Paso
Rock,
318,
City of
225 Ark.
281
ser v.
Little
appeal,
Upon
sued.
jured.
plaintiff
949,
City
of Little
S.W.2d
Patterson
immunity by
had
statute.
argued
it
city
Rock,
189,
(1941);
Ark.
S.W.2d 562
Christopher
Appeals
Texas Court
operation
system,
electrical
of Little
Paso,
(Tex.Civ.
El
S.W.2d 394
Holland,
Rock v.
184 Ark.
42 S.W.2d
App.1936),
held
and not a
proprietary
to be a
function,
fact,
Supreme
In
the Arkansas
Court
then held the
function.
It
to state
later
Parish v.
years
moved
ten
statute,
portion of the
which
quoted
above
Pitts,
(1968):
244 Ark.
Therefore, the of Appeals reasoned the Act was unaffected its decision. that Section of the Texas decision, therefore, Air- After Article port granting municipalities Act the same Statutes, 1269h of the Revised Ver- Civil powers they enjoyed had under Article (Footnote supra) non’s still Ann.Civ.St. 1269h could have had only purpose one authority municipalities furnished to “governmental”, use of the word acquire for airports, land to condemn to change was function of air- land for purpose, maintain and port from govеrnmental. airports, levy issue bonds and Otherwise, there no purpose was whatever end, things taxes to that to do all 15 being Section enacted. accomplishment necessary to statutory purpose. from
Quoting opinion: appellants elaborate The act with which we are con- their second now point by cerned, urging (footnote 1, effect of the supra) Article 46d-15 statute City’s declare the adopted year the same [section 15] *10 accepted if the contention of Even we amended.
which Article last 1269h.was legislature for to in use of There was no need Article 46d-15 that appellee appel- accomplish purposes which might using “governmental” the word it was intended. lants contend and limited sense in the word in the strict were accom- purposes already Those decisions, court it is in these used course, is, It plished Article 1269h. rejecting giving it a reason for that a statute should be so elementary Rhodes, interesting to note in it is supra, it a field give as to construed Court in Granite Supreme that the Nevada make it an effective law. The and to County, supra, Douglas Oil Securities presumed have legislature is never to question it did need to address said not in the thing done a vain enactment solely was of whether a determination Am.Jur., Statutes, statute. See Sec- judiciary rather within the province light tions 362. In the of the then reason for is legislature. than law, can see existing we no effective Supreme to the Nevada plain clear —it was 46d-15, given to be meaning Article “governmental” in the that the word Court designation other than that intended statute was not Nevada being public gov- functions therein support than legislature do more with it all ernmental carried of the conse- validity of the act. entails, quences designation which such a including exemption Thus, with a naked statement we are left (Emphasis added). liability. from tort “governmental” word that when the (Footnotes omitted) Act, Authorities Airport used it in the special, to use legislature intended with a state act unequivocally Faced the term only courts use limited sense so, doing presents it no difficul- specifically determining “proprie- special those cases ty for a Texas court to fathom in the back- intent ground legislative grant exception sovereign sover- tary” functions as an view, eign immunity. In our there can be immunity. little thаt had the Court Appeals doubt question the novel We are faced with simply the Fifth Circuit Sweetwater could, chose, if it of whether the interpretation been with an faced Sec- proprietary function of the legally change Act, tion Texas Airport 15 of the function, as into a courts city judicial special absent words, by stating: simply define these state, it would history of that have followed will gov- “Hereafter such functions all Rhodes, supra, held rationale of than proprie- rather ernmental in character an a munic- interpreted by tary, as these words is a function.
ipality Rather, question we court decisions.” removed, minimal doubt Even such attempted have is whether the however, Mississippi legislative when the so, as to an under or intended to do judicial history is considered. Act. Our view is Airport Authorities granting 1. Act of but Legislative obviously had no such condemn, no municipal powers issue intention. bonds, levy taxes as was the case in conclusion, we now answer the first Texas; to us questions two certified decisions; 2. Brummett ques- render Appeals. Those answered passed simultaneously 3. acts Two moot. number three Mississippi in 1958: Quеstion 1: Did the omission in No. Airport A. Municipal specifically any provision Law of Airport Act— granting immunity in tort continue effect Brummett, the rule law inferred from
B.
as to
Airport Authorities Act —silent
Authority has no
supra
immunity.
*11
arising
from suit
out
pro-
must be found in its constitution and
prietary
corporate
statutes,
functions?
“and
they
when
have not direct-
spoken,
ly
then in the decisions of the
The
question
answer
to this
is “YES.”
courts and the
practice
constant
of the
Question
so,
No.
allegations
2: If
Miss,
government
(150
48,
officials.”
at
supplying equipment
for maintenance
605).
115 So. at
purposes sufficient to describe such func-
The doctrine stated in Knox was based on
tions?
Assn.,
Freight
U.S.
Trans-Missouri
166
290,
540,
U.S.
17
41
(1896),
S.Ct.
L.Ed. 1007
The answer
question
to this
is also “Yes.”
in which the United
Supreme
States
Court
It is therefore ordered that the above and
held:
foregoing opinion of this Court be certified
public
The
policy
government
of the
is to
by the Clerk of this Court to the Clerk of
statutes,
be found in its
they
and when
the Court of Appeals for the Fifth Circuit
directly spoken,
have not
then in the deci-
as this Court’s answer to the certification
sions of the courts and the
prac-
constant
request
Rule 46.
under
officials;'
tice
government
оf the
but
lawmaking
when the
power speaks upon
PATTERSON, C.J., and ROY NOBLE
particular
subject, over which it has
LEE, HAWKINS,
LEE, JJ.,
and DAN M.
power
constitutional
legislate, public
concur.
policy in such a case is what the statute
340,
(166
559,
enacts.
17
U.S.
S.Ct. at
WALKER, P.JJ.,
SUGG and
and BROOM
1027).
41 L.Ed. at
PRATHER, JJ.,
dissent.
firmly
We are
principle
committed to the
text of the Fifth
certification,
Circuit’s
[The
that public policy decisions are not
made
opinion
attached to the
of the Mississippi
Constitution,
the court unless the
and stat-
Supreme
“Appendix A,”
Court as
appears
directly spoken
utes have not
on the ques-
at
[T]his trine that the public policy of the state mental function. Brummett, Brummett, appeal judg- of Jackson v.
1. On the second 224 Miss. against (1955). ment of Jackson was affirmed. So.2d 827 (1956). declares In 1958 the enacted the Air- When state, Law, its declaration is port Chapter public policy General (1958). as the courts are concerned. Mississippi Laws of Included in final as far 889, 97 Chapter ap- Golding Armstrong, 230 was 15 which now Section pears (1957). section 61-3-83 Code So.2d Annotated The statute follows: follows the North Carolina majority land, acquisition interest interpretation in its of a similar stat *12 therein, to this pursuant chapter, Ashe reported ute as in Rhodes of establishment, planning, acquisition, de- ville, (1949). 230 N.C. S.E.2d construction, improvement, velopment, North court held that Carolina maintenance, operation, regu- equipment, operation of whether the of a determination protection airports lation and and air a municipal airport proprietary was a or facilities, navigation including acqui- judicial function was a and governmental hazards, airport sition or elimination of legislative question. This any and the exercise of other powers Court is at variance the North Carolina granted chapter in this to authorities and specifically with our cases hold other or public agencies, severally to be public legislature may determine exercised, jointly hereby declared to policy declaring public and if the statute functions, public governmental be and ex- unconstitutional, the courts are policy is not matters public purpose, ercised for a and by legislative bound declaration. Other public necessity. All land and other states which have followed the North Caro property acquired and and used privileges at variance lina case are likewise with.our by any authority or on behalf of or other cases. public the manner for the agency in and Corp. Production my opinion Imperial purposes chapter enumerated in this shall Sweetwater, (5th 210 F.2d hereby acquired and are declared to be 1954) legislative is a case in which the Cir. and used for public governmental and history closely parallels the judicial and purposes public and as a matter of neces- legislative judicial history Mississippi sity. air- authorizing municipalities directly by airport either or an au- ports by When Brummett was decided thority. question Court the public policy whether the operation airport by municipali- of an authorizing Mississippi passed a statute ty governmental was a or a proprietary acquire in 1928. municipalities airports by had not been addressed authorizing mu- a statute passed Texas legislature, so this filled the void acquire airpоrts in 1929. nicipalities to operation
held the airport by of an munici- an air- Mississippi operation held the pality was a corporate govern- and not a corporate to be a port by municipality However, mental function. Brummett, supra. function in 1951. spoke public policy question on this in 1958 operation of an air- unequivocal terms that the Texas held that provided by by municipality au- airport airport port Paso, thority governmental Christopher City is a function. El function. S.W.2d 394 As demonstrated the authorities here- cited, passed Airport tofore has the authori- acquisi- that the ty policy provided to declare the refer- Law in 1958 and public tion, opera- airports. development, ence to the Matters maintenance and authority was a public policy are for the tion of an all function and public declare and it is not the function of the and on be- acquired courts to and used question property wisdom declara- hereby and are any authority tion of half of “Shall public policy legislature. public and used for Durham, acquired Durham v. to be So.2d declared purposes and as a matter No action or suit sounding in tort shall public necessity.” brought or against maintained thereof, any municipality state or or the Texas amended law in officers, servants, agents, or employees of Article provided 46d-15 and acqui- any thereof, the state or sition, development, construction and opera- account of act done in or about the tion of an airport by a municipality, “Are construction, maintenance, enlargement, hereby declared to and govern- operation, superintendence manage- functions, mental exercised for a public any airport ment of air naviga- other purpose and matters of necessi- facility. ty. ..” After setting forth the legislative judicial history of Texas with reference The first paragraph of section 61-5-47 is to the operation of airports by municipali- 61-3-83, the same as section but the second ties, the Fifth distinguished Circuit then paragraph of 61-5-47 was not included in Texas judicial history from the Authorities Act. The addition *13 that of North Carolina and stated: of the paragraph second specifically provid- ing for tort law, was not light necessary of the then existing we grant tort because the para-
can first meaning see no effective given to be graph of 61-5-47 46d-15, unequivocally provides to Article other than that acquisition, that the oper- maintenance and designation of the functions therein as of an airport by ation being municipality is a governmental carried governmental function. with it all of the consequences which such entails, designation including exemp- It is well settled that when municipality tion of the municipality from tort liabili- function, exercising governmental gov- ty ernmental immunity attaches and the mu-
nicipality is immune from tort. It is clearly within the province of the The plain two statutes contain a precise legislature, when acting reasonably statement of policy. The second not arbitrarily, to determine whether paragraph an of section 61-5-47 does not add act may performed by a city is to the tort immunity “which followed auto- public in its performed nature and as the matically from the nature of the function” agent of the state in furtherance of gen- designated in the paragraph first of the eral law for the interest of the public at statute. and, large hence, governmental. See In addition to by the facts stated Nashville, Stocker v. supra; 38 Circuit, Fifth the record shows that Am.Jur., Municipal Corporations, sec. City of Jackson was authorized to issue p. n. 5. When the function became $3,000,000 of full faith and credit bonds to nature, in its the legal ba- raise money for the establishment of an sis was furnished for the exemption of airport. genesis This was the of the Jack- the municipality torts, from liability for Municipal Airport grown son which has into indeed, that exemption followed automat- facility a modern which eventually required
ically from the nature of the function. $7,350,000 a total of the City bonds of (210 920-921) F.2d at Jackson building for its and construction. In the statement of facts in the case The Jackson Airport Authority us, certified to the Fifth Circuit noted that city, operates was created the Jack- the Mississippi Legislature, in addition to son Municipal Airport which was construct- enacting Jackson, Authorities Law in ed with funds raised 1958, also enacted the Municipal Airport and is in ego City. fact the alter The Law, Chapter 513, Mississippi General Laws majority immunity liability (1958). (Codified as section 61-5—47 Missis- distinction based on the manner in which a sippi (1973).) Code Annotated second chooses to paragraph of 61-5-47 follows: uniformity of law destroys pertaining to statute which was to long-arm The ment to the municipal airports. from and after from such a rul- “Take effect and be force
inconsistency which flows that, leg- 1,1964.” plaintiff when the The action on which ing my opinion July fortifies August provided bring islature suit accrued on sought to func- municipal airport was a of the statute 1962 before the effective date tion, operated it was regardless of whether Plaintiff expanded remedy. his municipal- airport authority applied should be claimed that the statute in- ity, public policy its statement of disagreed, this retroactively, but sup- have the effect of tended and.did held: as found
planting public policy question is whether the Brummett, supra. Court in retro- applied that statute to be intended spectively. II 320 is Chapter We do not think it did. agree majority holding I with the It not create a cause of remedial. did question second certified. action, of obtain provided but a method personam jurisdiction ing III Although legisla courts for a tort. does not addrеss majority opinion Chapter made 320 retro ture could have “If the question certified is: third active, such an the issue here is whether are in the questions answers to the above cases, long In a line of intent is shown. effect on this case was negative, of what that, followed the rule this Court has amendment to 61-3- the enactment of the statutes, they will interpretation of *14 15(b)? does the amended 61- Specifically, prospective opera have a be construed to 3-15(b) in tort for claims authorize suits intention is only, contrary unless a enact- accruing prior to the amendment’s posi and most by the clearest manifested ment, subject only to statutes of limitation Hooker, v. 18 Hooker expression. tive applicable?” that are otherwise M) (1848); v. (Smedes & 599 Brown Miss. 3—15(b) was amended Section M) 127 Wilcox, (14 & 61— 22 Miss. Smedes 396, 3, Chapter General Laws 1978 Section Co., 101 (1850); City Richards v. Lumber 1, July part effective 1978 to read in 678, (1912); 977 Power v. Miss. 57 So. follows: 319, Co., 112 Miss. 73 Mortgage Calvert insur- (b) purchase general liability To ex rel. Knox v. (1916); 51 Union So. State coverage, including ance errors and omis- Co., 797, 151 Miss. 119 310 Tank Car So. insurance, authority, for the its offi- sions Bank & (1928); Bell v. Union & Planters Nothing cials and contained employees. 486, Co., 130 486 158 Miss. So. Trust waiver of herein shall be considered as a Co. v. Mississippi Central Railroad (1930); part any in whole or in as to 311, 141 163 Miss. Hattiesburg, un- attempted (1932); of Lumberton v. 897 So. that authority except dertaken 272, 168 (1936); 77 Schrader, 176 Miss. So. authority where the has insur- 178 Dorsey, Life v. Jefferson Standard brought action coverage ance as to 852, (1937); United Miss. 173 669 So. it, main- against may then such action Mary Guaranty Co. Fidelity & States against authority. 103, such Co., tained 199 191 Miss. So. Casualty land ex Al rel. (1941); 278 McCullen State many cases that It is well established 256, exander, 63 856 217 Miss. So.2d that stat- this Court has followed the rule Southern (1953); Klass v. Continental only, prospective operation utes will have a Lines, 94, (1955); 705 Miss. 82 225 So.2d contrary intention is manifested unless a Commission, 233 Building Home v. State expression in the stat- positive a clear and 810, (1958). 103 373 Miss. So.2d Kohn, 481 In Mladinich v. 186 ute. So.2d construction rule of that he This established (Miss.1966) the'’plaintiff claimed ways by the in other phrased an amend- has been was entitled to the benefit of
757
above cases: A statute will
given
not be
The Act itself says
any person,
“If
firm
or corporation
paid,
retroactive effect unless it
is manifest
has
or shall hereafter
pay ...”
taxes for which
from the
there was no
language
that
liability, suit therefor could
brought
operate.
intended it to so
It will not be
same,
recover the
if
the Au-
payment by
construed as retroactive unless the words
ditor should be refused. The Act ex-
admit of no other construction or mean-
pressly applies to one
“has” paid
who
ing,
plain
and there is a
declaration in the
Miss,
639,
(206
40
So.2d at
taxes..
short,
act that it is. In
these cases illus-
589)
trate a well-settled attitude of statutory
interpretation: A preference that
it be
The law
was no
applied
different
than
prospective
only,
requirement
that
Mladinich,
expressed
supra,
rule
there
clearly expressed
should be a
intent
regard to
right
statutes
confer a
in the act
retrospective.
to make it
See did not previously
Cummings,
exist.
Note, 63
(1963); Note,
Col.L.Rev. 1105
44 Court held the statute retroactive only be-
(1934);
Yale L.J. 358
84
cause the
expressed a clear in-
C.J.S. Statutes
416, 421,
tent
(1953);
applied
422
that it be
retroactively.
50 Am.Jur.
Cum-
§§
Stat-
478, 480,
mings does
support appellant’s position
utes
482
§§
61-3-15(b)
because section
(Supp.1981) does
Although some of the cases from other
not contain a clear expression by
legis-
jurisdictions, cited in the above authori-
lature
applied
the amendment be
ret-
ties, hold that a remedial statute does not
roactively.
come within
general
against
rule
ret-
Appellant
relies on
rospective operation,
McKay
Stone
cases
Co.,
Plumbing
Miss.
distinction,
have declined to make
So.2d
suggestion of error sustained 30
So.2d
and we see no sound reason to overrule
(1947). McKay Plumbing Company filed
Hooker,
them. Hooker v.
(Sme-
18 Miss.
against
suit
Tax Commission un-
State
M)
(1848);
des &
Horne v. State
der a
statute
authorized suit to recover
Building Commission,
illegally
taxes
collected. Final
judgment
(1958);
So.2d 373
Mississippi Central Rail-
on December
was rendered
1945 in favor
road Co. v.
of Hattiesburg, 163 Miss.
and the
McKay
appealed.
Commissioner
(1932);
So.
Bell v. Union &
*15
appeal,
legisla-
While the case was on
Co.,
486,
Planters Bank & Trust
158 Miss.
19,1946
ture amended the statute on March
(1930);
So. 486
Richards v.
Lum-
provide
all suits to recover taxes
Co.,
678,
ber
Miss.
subject to review bility limiting recovery solely Court on the insurance and merits of the case presented proceeds to the to the of such insurance. lower court. This Court said there was
no Legislature WALKER, P.J., error on the merits. The and BROOM and wipe undertakes to out the judgment PRATHER, JJ., of a join opinion. in this Miss, (200 act. at 30 So.2d 95) suggestion error, On decided Court,
equally divided the Court held that
the legislature cannot statute divest a
person judgment obtained in a trial
court before the effective date of the stat- ute. LOEHR, Plaintiff-Appellant, Conrad McKay, Stone v. does not support appel- lant’s argument that the amendment to 61- LOGISTICS, INC., al., et OFFSHORE 3-15(b) should applied retroactively be- Defendants-Appellees. cause only this case dealt with a judgment obtained before statute was amended No. 81-3482 which would invalidate the judgment. Summary Calendar. I would answer the question third certi- Appeals, United States Court of 3—15(b)
fied and hold that does not au- 61— Fifth Circuit. thorize suits in tort accruing for claims Nov. 1982. prior to the enactment of the amendment because we follow the rule that statutes
will have a prospective operation only, un-
less a contrary intention is manifested positive expression
clear and in the statute.
I positive find no clear and expression in making statute it retroactive.
CONCLUSION 61-3-15(b) amendment to section
the legislature authorizing in 1978 purchase
authorities to liability insurance limiting recovery solely proceeds to the
of such insurance shows that the legislature opinion
was of the it had granted immunity *16 municipalities operating airports by a
municipality airport authority. The amend- specifically provided,
ment “Nothing con-
tained herein shall be considered as a waiv-
er of immunity part in whole or in as to attempted or under-
taken ...” authority language This
leads to the inescapable conclusion that the
legislature intended section 61-3-83 as a
grant to municipalities operat-
ing airports by a municipal airport authori- Otherwise,
ty. there was no necessity for
the amendment of lia- authorizing purchase