CITY of NORTH LITTLE ROCK and North Little
Rock Airport Commission v. PULASKI COUNTY,
Arkansas and B.A. McIntosh, Pulaski County
97-714 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered April 16, 1998
1. Statutes -- presumption of constitutional validity -- when
struck down. -- In reviewing the constitutionality of
legislative acts, the supreme court starts with a presumption
of constitutional validity; statutes will not be struck down
unless they clearly and unmistakably conflict with the
2. Taxation -- property exempt from ad valorem taxes -- term
"public purpose" not easily defined. -- The Arkansas
Constitution specifically exempts from ad valorem taxes public
property used exclusively for public purposes; the meaning of
the phrase "public purpose" is not exact, nor is it prone to
a static definition; the supreme court looks to legislative
language for such pronouncements.
3. Statutes -- legislative public-purpose declaration -- when
reversed. -- An act must prevail unless there is something in
the Arkansas Constitution that restrains the legislature from
saying that a designated course of conduct or a policy is for
the public welfare, or unless the thing authorized is so
demonstrably wrong that reasonable people would not believe
that this was the legislative intent; a legislative public-
purpose declaration will be reversed only if the legislature
acted arbitrarily, unreasonably, or capriciously.
4. Statutes -- part of act invalid -- determination as to whether
entire act must fail. -- In determining whether the invalidity
of part of an act is fatal to the entire legislation, the
supreme court looks to (1) whether a single purpose is meant
to be accomplished by the act, and (2) whether the sections of
the act are interrelated and dependent upon each other.
5. Statutes -- severability clause included in act -- clause not
determinative as to whether act can stand. -- Although a
severability clause is included in an act, that factor alone
is not determinative as to whether the act can stand, despite
the invalidity of part of it.
6. Statutes -- clear purpose of Act 438 was to undertake
function reserved to judiciary -- Act struck in its entirety.
-- The clear purpose of Act 438 of 1995 was to undertake a
function which is reserved to the judiciary, that is, the
declaration of property exempt from ad valorem taxes because
of its exclusive use for public purposes; the provisions of
the act were dependent upon each other and interrelated and
evinced the General Assembly's intent to pass the act as a
whole or not at all; the supreme court found a clear
distinction between the General Assembly's legitimate
declaration of what is a public purpose and a per se
determination by the General Assembly that certain private
property is actually used exclusively for public purposes, and
thus exempt from tax; the latter is a judicial function
performed only after appropriate fact-finding by the trial
court; therefore, Act 438 was struck in its entirety.
7. Statutes -- Hogue case emphasized by dissent -- case
inapplicable. -- The dissent emphasized the court's holding in
Hogue v. Housing Authority of North Little Rock, 201 Ark. 263,
144 S.W.2d 49 (1940), where it was held that the Housing
Authorities Act was constitutional; absent in the analysis in
Hogue was any discussion of separation of powers or any
consideration of whether the General Assembly had overstepped
its bounds in declaring a tax exemption; accordingly, because
the separation-of-powers issue was not reached or even
considered in Hogue, it was not governing authority for the
case at hand.
8. Statutes -- allegation concerning appraisal and assessment
unsupported by proof -- no basis for reversal. -- Where
appellants' allegation of an untimely assessment was made
using only the "Notice of Property Revaluation" as proof, the
appellant failed to satisfy its burden of proving when the
appraisal and assessment occurred; notice of assessment is not
proof of when the assessment actually occurred; the date of a
notice of revaluation is not conclusive proof of when the
assessment actually took place; because the appellants did not
meet their burden in this regard, there was no basis for
Appeal from Pulaski Circuit Court; John Ward, Judge; affirmed.
Timothy Davis Fox, for appellants.
Karla M. Burnett, Ass't County Att'y and Amanda Mankin, Staff
Att'y, for appellees.
Robert L. Brown, Justice.
Appellants City of North Little Rock and the North Little Rock
Airport Commission (jointly referred to in this opinion as North
Little Rock) filed an amended appeal in circuit court from a
decision of the Pulaski County Court that affirmed the assessment
for ad valorem tax purposes of eleven parcels of real property
located within the domain of the North Little Rock Municipal
Airport. North Little Rock claimed that Act 438 of 1995 designated
the eleven parcels as public property and, thus, the parcels should
be exempt from taxation under Ark. Const. art. 16, 5, and removed
from the County tax rolls. North Little Rock also requested that
the property tax assessments for the years 1992 through 1995 be
declared null and void.
Appellees, Pulaski County and the County Assessor (County),
answered and moved for a declaratory judgment on the grounds (1)
that Act 438 of 1995 should not be given retroactive effect; and
(2) that Act 438 violated Ark. Const. art. 16, 6, which renders
void any law exempting property from taxation other than as
provided in the Arkansas Constitution.
The circuit court agreed with the County and entered an order
declaring that the General Assembly had violated the separation-of-
powers doctrine when it enacted Act 438 of 1995. See Ark. Const.
art. 4, 2. It did so, according to the court, by usurping the
judicial fact-finding function and by declaring through legislation
that airport property is acquired and held exclusively for public
purposes. The circuit court further determined that because Act
438 established that certain airport property was per se exempt as
being used exclusively for public purposes under Ark. Const. art.
16, 5(b), this violated the proscription against laws exempting
property from taxation other than as provided in the Arkansas
Constitution. See Ark. Const. art. 16, 6. The matter then went
to hearing before the court on the issues of whether the eleven
parcels were exempt after this court's opinion in City of Little
Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995), and whether
the County's revaluation efforts complied with Ark. Code Ann. 26-
26-1011 (Repl. 1997), which requires assessments to occur between
the first Monday in January and July 1 of a given year.
At the hearing before the circuit court, Judy Wheeler, manager
of the North Little Rock Municipal Airport, testified that the
airport is a general aviation airport that owns land and provides
service to single and twin-engine planes but not for commercial air
traffic. She testified that the airport enters into leases with
individuals and private entities to use its land to house hangars,
fuel stations, repair stations, and the like, with the lessees
being responsible for the construction of their own improvements.
She explained that in the past the leases were silent on who was
required to pay county ad valorem taxes on real property because
there had never before been a county assessment. However, the
leases were changed in 1992 to require that the lessee pay those
Ms. Wheeler testified that the North Little Rock Airport
received a "Notice of Property Revaluation" dated July 11, 1993,
that purported to notify North Little Rock of the assessment of the
entire amount of airport property, including runways, taxiways, and
common areas. She explained that North Little Rock then went
before the County Equalization Board to complain about the entire
property's being assessed. On September 9, 1993, the Equalization
Board determined that only the eleven parcels which were leased to
private entities should be assessed.
The crux of Ms. Wheeler's testimony on direct examination was
that hangars and other improvements by lessees were an integral
part of the operation and maintenance of a municipal airport and
that North Little Rock could ill afford to construct the
improvements itself. Furthermore, FAA regulations did not require
North Little Rock to construct hangars and terminal facilities.
Rather, the FAA only required that suitable space and reasonable
prices be made available for those who wished to do so. On cross-
examination, Ms. Wheeler admitted that although the "Notice of
Property Revaluation" reflected the date July 11, 1993, she did not
know when the assessment of ad valorem taxes actually occurred.
Following the hearing, the circuit court entered its order,
finding the following: (1) any issues regarding 1992 ad valorem
taxes were moot; (2) taxes for the year 1993 were assessed in
compliance with 26-26-1011; and (3) the eleven parcels were not
exempt under Ark. Const. art. 16, 5, and City of Little Rock v.
North Little Rock now appeals from both orders of the circuit
court and urges, first, that the circuit court erred in declaring
Act 438 unconstitutional. We disagree. In reviewing the
constitutionality of legislative acts, we start with a presumption
of constitutional validity. Board of Trustees v. City of Little
Rock, 295 Ark. 585, 589, 750 S.W.2d 950, 952 (1988). Statutes will
not be struck down unless they conflict with the constitution
"clearly and unmistakably." Id., citing Board of Trustees of
Municipal Judges and Clerks Fund, City of Little Rock v. Beard, 273
Ark. 423, 620 S.W.2d 295 (1981); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932).
The Arkansas Constitution specifically exempts from ad valorem
taxes "public property used exclusively for public purposes." Ark.
Const. art. 16, 5(b). In the past, we have declined to give a
judicial definition to the phrase "public purpose" because its
meaning is not exact, nor is it prone to a static definition.
Holiday Is. Suburban Improvement Dist. #1 v. Williams, 295 Ark.
442, 749 S.W.2d 314 (1988). See Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). Instead, we look to legislative language for
such pronouncements. See Murphy v. Epes, supra; Kerr v. East
Central Arkansas Housing Authority, 208 Ark. 625, 187 S.W.2d 189
(1945). The Act must prevail unless there is something in the
Arkansas Constitution which restrains the legislature from saying
that a designated course of conduct or a policy is for the public
welfare, or unless the thing authorized is so demonstrably wrong
that reasonable people would not believe that this was the
legislative intent. Murphy, 283 Ark. at 525, 678 S.W.2d at 357.
We reverse a legislative public-purpose declaration only if the
legislature acted arbitrarily, unreasonably, or capriciously. Id.
at 525-26. 678 S.W.2d at 357.
In City of Little Rock v. McIntosh, supra, this court held
that certain tracts of property at the Little Rock Municipal
Airport leased to private entities were not exempt from ad valorem
taxation under Ark. Const. art. 16, 5. Our holding was based on
the fact that the City of Little Rock had failed to prove that the
tracts leased to private businesses, which were conceded to be
"public land," were being used "exclusively" for public purposes.
In doing so, we focused on the actual use of the land and whether
that use was solely for public purposes. The private businesses
involved in McIntosh included four car rental companies, one
aircraft modification company, two aircraft service companies, and
three fixed-based operators.
Eleven days after the McIntosh decision, the General Assembly
passed Act 438 of 1995, with an emergency clause. The Act provided
in pertinent part:
(a) The ownership, operation, and management of
municipal airports . . . and their related properties and
facilities, including without limitation runways,
hangars, terminal facilities, and suitable areas or space
which are made available to those who are willing and
otherwise qualified to offer transportation services to
the public or support services to aircraft operators, all
as may be necessary or desirable for the servicing of
aircraft in commercial or general aviation or for the
comfort and accommodation of air travelers traveling in
commercial or general aviation, are vital to the economic
welfare of the state of Arkansas and its people and such
airports and their related properties and facilities are
declared and confirmed to be used exclusively for public
(b) All airport property and related properties and
facilities owned by a municipality, county, or other
public agency for the purposes enumerated in this section
are declared to be acquired and used exclusively for
public and governmental purposes and as a matter of
public necessity and shall be exempt from ad valorem
taxation to the same extent as other property used
exclusively for public purposes.
1995 Ark. Acts 438, now codified at Ark. Code Ann. 14-356-102
In its appeal, North Little Rock agrees with the circuit court
that the General Assembly violated the doctrine of separation of
powers by declaring various uses involved in the operation of an
airport to be exempt from ad valorem taxation. Despite that
acknowledgment, North Little Rock contends that the General
Assembly did have the authority to declare what property falls into
the category of property used for public purposes and that the
circuit court erred in not recognizing that fact. Thus, North
Little Rock urges this court to cut and paste and salvage that
portion of subsection (a) of Act 438 which declares that certain
activities are used for public purposes. In doing so, North Little
Rock also urges that we strike the word "exclusively" in subsection
In determining whether the invalidity of part of an act is
fatal to the entire legislation, this court looks to (1) whether a
single purpose is meant to be accomplished by the act, and (2)
whether the sections of the act are interrelated and dependent upon
each other. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994); Wenderoth v. City of Ft. Smith, 251 Ark. 342,
472 S.W.2d 74 (1971); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965).
The purpose of Act 438 can be garnered from its title:
AN ACT to Amend Title 14, Subtitle 22, Chapter 356 of the
Arkansas Code for the Purpose of Declaring That Airports
Owned by Municipalities, Counties, or Other Public
Agencies are Used Exclusively for Public Purposes and
Therefore Exempt From Ad Valorem Taxation; Declaring an
Emergency; and for Other Purposes.
1995 Ark. Acts 438. This theme of tax exemption is repeated in
subsection (b) and the Act's Emergency Clause, and the test for
exemption -- exclusively used for public purposes -- is repeated in
subsection (a) as well. The clear purpose of the Act is to
undertake a function which is reserved to the judiciary, that is,
the declaration of property exempt from ad valorem taxes because of
its exclusive use for public purposes.
Furthermore, it is obvious that the provisions of the act,
only two in number, and both of which contain language conceded to
be infirm by North Little Rock, are dependent upon each other and
interrelated and evince the General Assembly's intent to pass the
act as a whole or not at all. U.S. Term Limits, Inc. v. Hill,
supra; Wenderoth v. City of Fort Smith, supra. Although a
severability clause is included in Act 438, that factor alone is
not determinative. U.S. Term Limits, Inc. v. Hill, supra. Under
the circumstances, we are loath to strike subsection (b) of Act 438
as unconstitutional and strike the word "exclusively" in subsection
(a), when that same word is used in the Act's title. Were we to do
so, it would smack of legislative drafting on our part.
In short, we draw a clear distinction between the General
Assembly's declaration of what is a public purpose on the one hand,
which is entirely legitimate, and a per se determination by the
General Assembly that certain private property is actually used
exclusively for public purposes, and thus exempt from tax, on the
other. The latter, as the circuit court correctly observed, is a
judicial function performed only after appropriate fact-finding by
the trial court. For the foregoing reasons, we conclude that Act
438 must be struck in its entirety.
The dissent emphasizes our holding in Hogue v. The Housing
Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940),
where we held the Housing Authorities Act (Act 298 of 1937) to be
constitutional. In doing so, we discussed in Hogue whether
property acquired by the housing authorities would be exclusively
used for public purposes pursuant to Article 16, 5, of the
Arkansas Constitution. We concluded that the purpose of Act 298
was slum clearance, which is a public purpose, and that the
property acquired by the housing authorities was exclusively used
for public purposes and, thus, exempt from ad valorem taxes.
Absent in our analysis in Hogue was any discussion of separation of
powers or any consideration of whether the General Assembly had
overstepped its bounds in declaring a tax exemption. Accordingly,
because the separation-of-powers issue was not reached, or even
considered in Hogue, we do not deem it to be governing authority
for the case at hand.
For its second point, North Little Rock contends that the 1993
tax was illegal because it was not assessed before July 1, 1993, as
required by Ark. Code Ann. 26-26-1101 (Repl. 1992). Because
North Little Rock received a "Notice of Property Revaluation" dated
July 11, 1993, it contends that the assessment could not have been
timely. As further evidence, North Little Rock claims that the
initial assessment was improper because it covered the entire
airport and was later reassessed in either August or September 1993
by the County Board of Equalization with respect to the eleven
parcels at issue. North Little Rock also shows us that the July
11, 1993 notice included an appraised land value of $0, which would
not have resulted in any tax liability.
The County responds that North Little Rock failed to satisfy
its burden of proving when the appraisal and assessment occurred
because notice of assessment is not proof of when the assessment
actually occurred. The County is correct. North Little Rock
appears to believe that it can make this allegation of an untimely
assessment without following up with proof. Surely, the date of a
notice of revaluation is not conclusive proof of when the
assessment actually took place. Because North Little Rock has not
met its burden in this regard, there is no basis for reversal.
Corbin and Thornton, JJ., concur in part and dissent in part.
Ray Thornton, Justice, concurring in part and dissenting in
part. The majority has correctly determined that the city of
North Little Rock did not prove that the 1993 tax assessment on
airport property was invalid because of Pulaski County's failure
to timely make an assessment. As pointed out by the majority,
the allegation of an untimely assessment by the county must be
supported by proof, and the trial court did not err in
determining that the city had not met the burden of proof. I
concur with the majority's conclusion that, under well
established principles of law, the General Assembly does not have
the power to exempt property from taxation. See, e.g., Little
Rock & Fort Smith Ry. Co. v. Worthen, 46 Ark. 312 (1885); Tedford
v. Vauix, 183 Ark. 240, 35 S.W.2d 346 (1931). I further agree
that, in deciding this case, we should "draw a clear distinction
between the General Assembly's declaration of what is a public
purpose on the one hand, which is entirely legitimate, and a per
se determination by the General Assembly that certain private
property is . . . exempt from tax, on the other." However,
because I believe the interpretation of this statute affords the
court the opportunity of drawing that distinction between the
provisions of the statute that are void, and those provisions
that legitimately and properly articulate public-policy
considerations, I respectfully dissent from the majority's
conclusion that the entire act must be invalidated.
In accordance with the well-established presumption of
constitutional validity of a legislative enactment, we have
specifically held that a statutory provision that is virtually
identical to the provisions of subsection (a) of Act 438 of 1995
is constitutional. Hogue v. The Housing Authority of North
Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940). In 1937, the
General Assembly adopted Act 298, which authorized the creation
of housing authorities in certain cities and in all counties for
the stated public purpose of clearing slums and building housing
projects. Section 23 of that Act provided in part as follows:
Section 23. Tax Exemption and Payments in Lieu of Taxes.
The property of an authority is declared to be public
property used for essential and exclusively public and
governmental purposes, and not for profit, and such property
and an authority shall be exempt from all taxes and special
assessments of the State or any State Public Body thereof."
This provision of the Act was attacked because it contained
language that declared such property to be used for exclusive
public purposes, and declared that such property should be exempt
from taxes. In Hogue, we considered section 5 of Article 16 of
our constitution, which provides in part:
All property subject to taxation shall be taxed according to
its value. . . . Provided, further, that the following
property shall be exempt from taxation; public property used
exclusively for public purposes . . .; and buildings and
grounds and materials used exclusively for public charity.
We further considered section 6 of Article 16 of our
constitution, which provides that "All laws exempting property
from taxation other than as provided in this Constitution shall
be void." The argument was vigorously presented to us that the
statute was void in attempting to extend an exemption from taxes,
and we determined that the statute was not unconstitutional,
reasoning as follows:
The point is made and insisted upon that the property of the
Housing Authority is not exclusively used for public or
charitable purposes and that before it may be exempted from
taxation such property must be exclusively used for this
purpose. We think a fair construction of the act is that
all the property acquired by [the Housing Authority] is to
be used and will be used in the clearance of slum areas and
the furnishing of safe and sanitary dwelling accommodations
free from conditions of overcrowding and want of air and
light prevailing in slum areas.
Hogue, 201 Ark. at 272, 144 S.W.2d at 54. After citing cases
from Tennessee and Texas interpreting similar statutory and
constitutional provisions, we stated:
We, therefore, hold that the act in question is not
vulnerable because it exempted the property of the Housing
Authority from all taxes and special assessments by the
state or any public body thereof.
Id. at 274, 144 S.W.2d at 55.
The issue of the constitutionality of Act 298 of 1937 was
presented to us again in Kerr v. East Central Arkansas Regional
Housing Authority, 208 Ark 625, 187 S.W.2d 189 (1945), where we
Public policy is declared by the General Assembly; not
by courts. Unless there is something in the Constitution
restraining the Legislature from saying that a designated
course of conduct or a policy is for the public welfare, or
unless the thing authorized is so demonstrably wrong that
reasonable people would not believe that such was the
legislative intent, the Act must prevail.
Since essentials of Act 298 were sustained in the Hogue
case, subsequently adhered to, and since the distinction to
be drawn is not susceptible of being measured, graded, or
determined by ratio or known formula, it must again be held
that the legislative finding is binding and that the purpose
to be served is a public one.
Id. at 630, 187 S.W.2d at 192.
The principle that the General Assembly should declare the
public policy of the State and that its declarations as to public
purpose will prevail unless the legislature acted arbitrarily,
unreasonably, or capriciously has been firmly established. See,
e.g., Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). Based
on that principle, the legislature has adopted a number of
definitions of "public property used exclusively for public
purposes." A few examples are illustrative:
(a) It is hereby found and determined by the Seventy-Eighth
General Assembly that all property owned by the Arkansas
State Highway Commission or the Arkansas State Highway and
Transportation Department is public property used
exclusively for public purposes.
Ark. Code Ann. 26-3-308 (Repl. 1997).
All tollway projects, and all the properties thereof, are
legislatively determined and declared to be public
properties used exclusively for public purposes and the
legislative intent is that tollway projects, and all
properties thereof, shall be exempt from ad valorem taxes
under and pursuant to the provisions of Arkansas
Constitution, Article 16, Section 5.
Ark. Code Ann. 14-303-104 (1987).
(a) All transit systems formed under this chapter, and all
the properties thereof, are declared to be public properties
used exclusively for public purposes. (b) The legislative
intent of this section is that these transit systems, and
all property thereof shall be exempt from: (1) Ad valorem
taxes under and pursuant to the provisions of Arkansas
Constitution, Article 16, 5[.]
Ark. Code Ann. 14-334-106 (1987).
Similar declarations of legislative intent to define uses of
property as being for public purposes are found in Ark. Code Ann.
14-164-701 (1987) (industrial facilities); 14-169-804 (1987)
(urban renewal); 27-71-104 (Repl. 1994) (turnpikes); and
26-3-301 (Repl. 1997), which lists more than a dozen uses of
property that are legislatively declared to be used for public
purposes, and consequently, exempted from taxation.
Until Act 438 of 1995 was adopted, the General Assembly had
not established the considerations of public policy with respect
to the public purpose of airport operations. Without the benefit
of such a legislative declaration of public purpose, we reached a
decision in Little Rock Municipal Airport v. McIntosh, 319 Ark.
423, 892 S.W.2d 462 (1995), in which we concluded that a number
of airport-related operations were not exempt from ad valorem
taxation as property used exclusively for public purposes. In
that case, we decided that aircraft-service centers and fixed-
base operators were among the operations that were not used
exclusively for the public purpose of providing dependable and
safe air travel. Without the benefit of a legislative
declaration of public policy, we did not recognize that such
operations are not only essential to providing fuel for aircraft
so they can continue their journey, nor did we recognize that
these operations are essential for public safety in providing, in
most cases, the only radio communication between an aircraft and
It is not surprising that, promptly following our decision
in McIntosh, the General Assembly sought, with Act 438, to inform
the court of the public-policy considerations relating to the
public purpose of maintaining safe and reliable facilities for
those who travel by air. That declaration of public policy is a
proper legislative action. However, the General Assembly also
exceeded its authority by declaring that certain legislatively
defined airport properties are used "exclusively" for public
purposes, and exempt from ad valorem taxation. This violates
principles of separation of powers, and is therefore
unconstitutional and void.
Act 438 contains a severability clause providing that if any
part of the act were determined to be unconstitutional, the other
provisions of the act should remain valid. The policy
pronouncements of Act 438 are not significantly different from
the provision of Act 286 of 1937 that we have held to be
constitutional, and are very similar to provisions in numerous
Where part of an act is unconstitutional, but other
provisions are valid, we have recognized the efficacy of
severability clauses, and have had no difficulty in removing
words or phrases, or even, entire sections from statutes when
those provisions offended constitutional limitations upon
legislative action. Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942).
If an act is constitutional in part, the valid portion will
be sustained if complete in itself and capable of being executed
in accordance with the apparent legislative intent. Id. at 659,
163 S.W.2d at 531. The constitutional and unconstitutional
provisions may even be contained in the same section. Id. If a
statute attempts to accomplish two or more objects, and is void
as to one, it may still be in every respect complete and valid as
to the other. Id. at 660, 163 S.W.2d at 531.
In Levy, we struck the words "The Supreme Court" from a list
of courts granted original jurisdiction when the grant of
jurisdiction to the supreme court exceeded constitutional
limitations, but sustained the constitutionality of the act as it
related to other courts, and to its general purposes.
In my opinion, Act 438 was drafted to accomplish two
discrete purposes: (1) a declaration of public policy, and (2) a
legislative declaration of tax exemption. We should sustain as
constitutional, the public-policy declarations contained in the
Act. There is only one word in Act 438 that can be interpreted
as overstepping the authority of the General Assembly. The word
"exclusively" is used once in section (a) and twice in section
(b). I would strike the offending word "exclusively" from the
Act, or, alternatively, rely on Hogue as authority for
determining that the use of that word does not invalidate the
I also write to encourage legislative enactment of a more
precisely drawn statute declaring that the operation of a
publicly owned airport, with its runways, hangars, taxiways,
instrument approach systems, terminal buildings, aircraft service
and repair centers, flight training programs and facilities, and
fixed-base operators, together with radio communications and
other facilities necessary and essential to reliable and safe air
travel for the public is declared to be public property used for
a public purpose. This court should welcome legislative action
to establish public policy. The application of that public
policy to a particular set of facts under constitutional
constraints will of course remain a judicial function.
Corbin, J., joins.