Ex Parte Houston

BRETT, J.

(concurring). After mature consideration and study I am led to agree that the legal conclusions arrived at by associate Judge POWELL are eminently correct. This member of the Court is now satisfied with the majority’s conclusion that the exclusive right granted to R. G. (Bob) White, doing business as the Airport Limousine Service, is not a franchise. It is not a franchise since the exclusive right granted the Airport Limousine Service does not entail the use of or infringement of any public streets or highways or municipal facilities provided by the city, in the exercise of its governmental functions. To the contrary, as clearly pointed out in Judge POWELL’S opinion, the premises covered in the exclusive contract with White do not constitute a part of the streets and highways or *75 facilities provided by tbe city in its governmental capacity, but are part and parcel of tbe airport premises being operated not in its governmental but in its proprietary capacity. Being so constituted and operated, tbe city bad the power to malee the contract with White just as any other corporation or individual would if operating in a proprietary capacity. Hence the contract is not in violation of the provisions of Art. XVIII, §§ 5(a), 7, in relation to granting franchises. Had the situation involved the use of governmental facilities such as use of streets and highways the right invoked would constitute a franchise and the right of the use could only emanate from the sovereign power or by a vote of the people in the municipality under the provisions of Art. XVIII, §§ 5(a), 7, but such is not the situation herein involved. The contract herein involved and the Oklahoma City Ordinance No. 6331, enacted to enforce the provisions of the contract made with White granting him exclusive parking privileges on the airport facilities clearly fall within the provisions of the Airport Act, O.S. Supp. 1947 Title 3, § 65.1, etc., conferring upon cities the right to act in their proprietary capacity in the establishment of airport facilities as distinguished from their governmental functions, to acquire, maintain, operate and prescribe rules and regulations for the maintenance and operation of such airport facilities and since the powers; so exercised are proprietary and not governmental the same are not in violation of the constitutional provisions hez’einbefore referred to. Moreover, they are matters of legislative concern. In this regard, this Court has said in Ex parte Strauch, 80 Okla. Cr. 89 , 157 P. 2d 201 , 203:

“The Legislature and not the courts must determine the policy of the state to be voiced in statutory enact *76 ments. Legislative power, not wisdom, is 'the concern of the courts.” Such is the situation herein involved.

Petitioner in his petition for rehearing says if it were not for the provisions of O.S. Supp. 1947, Title 3, § 65.16, “this counsel would admit the logic and reasoning of the court was good”. By this admission the petitioner strips himself of his entire argument. One need only read the logic and reasoning of the Court in the opinion on rehearing to be so convinced. The last referred to section declares the powers-under the airport act to be public, governmental and municipal functions. Judge POWELL clearly demonstrates in his opinion that the mere fact of definition does not make them such. Hence the writer concurs with associate Judge POWELL’S conclusion that “what is or is not a governmental function is a judicial question which can in no event be determined by the legislature”. To hold with the petitioner’s contention that the legislative act under which the city derives its airport powers, defines the operations as governmental and that such definition binds the city and the courts, would be to ignore the fact that the operation is proprietary, and hence would jeopardize the greater rights of all of society to seek redress for negligence in the operation of such airport facilities which are proprietary in fact and only because of which fact are they required to answer in damages for negligent operation of same. No such legislative fiction should or will be permitted to interfere with the right of redress in the general public including all of labor such as carpenters, masons and others performing services in and about the airport for tortious wrongs, where the operation is in fact proprietary and not governmental.

It is not necessary for the writer to consider the other propositions presented by the petitioner since they *77 constitute no obstacle to Ms concurrence in tbe original opinion heretofore rendered. Having become satisfied on the two propositions herein discussed and being convinced that associate Judge POWELL is eminently correct in his conclusions, the writer hereby authorizes the withdrawal of his dissent and on rehearing concurs both in the original and the opinion herein on rehearing.