Opinion
No. 3947.
Decided November 8, 1950.
A provision in a lease by a city granting an exclusive right to use its airport for commercial flying contrary to the provisions of Laws 1939, c. 224, s. 11, prohibiting the granting of such right where state or federal funds have been expended, is void. Where a material provision of a written lease is illegal and the rights of the lessee under the remaining provisions are so mingled and bound together with the illegal part as to be inseparable the whole lease is void and no recovery may be had on any part of it.
ASSUMPSIT, by the plaintiffs, lessees under a written lease, against the defendant lessor, for a breach of the lease based upon the eviction of the plaintiffs from the demised premises during the term.
On March 14, 1940, the defendant leased to the plaintiffs the "old and new hangar and old administration buildings now under the control of the Board of Aviation Trustees and known as the Manchester Airport, for the period of three years beginning January 1, 1940," with the right to renew for two additional three year periods. This lease included the following provision: "3. It is agreed that the lessee shall have exclusive right at the said Manchester Airport insofar as commercial flying activities are concerned, except that the Boston Maine Transportation Company shall be allowed to continue its air mail and passenger service upon the same terms and conditions as in the past."
The defendant city on January 7, 1941, leased the same premises to the United States of America. The latter evicted the plaintiffs therefrom on or about December 7, 1941.
The Court (Goodnow, C. J.), subject to the plaintiffs' exception, which was transferred, granted the defendant's motion to dismiss the action on the ground "[t]hat the Board of Aviation Recreation of the City of Manchester was not authorized to enter into the contract in question under the `Civil Aeronautics Act of 1938, sec. 302 (a) (4) and sec. 303' or under the Public Acts and Joint Resolutions of the Legislature of 1939, chap. 224, sec. 11."
Laws 1939, c. 224, s. 11 provides in part as follows: "There shall be no exclusive right for the use of any landing area or air navigation facility upon which state or federal funds have been expended." Section 3 II, of said chapter reads as follows: "`Air navigation facility' means any facility used in, available for use in, or designed for use in, aid of air navigation, including landing areas, lights, any apparatus or equipment for disseminating weather information, for signaling, for radio-directional finding, or for radio or other electrical communication, and any other structure or mechanism having a similar purpose for guiding or controlling flight in the air or the landing and take-off of aircraft." 3 IV. "`Landing area' means any locality, either of land or water, including airports and intermediate landing fields which is used, or intended to be used, for the landing and takeoff of aircraft, whether or not facilities are provided for the shelter, servicing, or repair of aircraft, or for receiving or discharging passengers or cargo."
Section 302 (a) (4) of said Civil Aeronautics Act of 1938 (52 U.S. Stat. 985) reads as follows: "No exclusive rights shall be granted for the use of any civil airway, landing area, or other navigation facility." Section 303 (Id. 986) provides as follows: "There shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended." This Act contains definitions of "landing area" and of "navigation facility" similar to those in Laws 1939, c. 224.
The Court found "that prior to March 14, 1940, both Federal and State funds had been expended upon the property known as the Manchester Airport in the development of the property as an airport." The Court ruled that "so far as the buildings which were leased by the defendant to the plaintiffs the statutes in question do not apply. So far as the provisions in the lease granting the `exclusive right insofar as commercial activities' is concerned, the Court rules as a matter of law that this is such an exclusive right as is prohibited by both the Federal and the State statutes cited above. The terms of the lease in question could not be performed with regard to this exclusive right without violation of both the Federal and State statutes. . . . The provisions of section 3 of the lease in question are void as being contrary to the statutes in question."
Other facts appear in the opinion.
McLane, Davis, Carleton Graf and Arthur A. Greene, Jr. (Mr. Greene orally), for the plaintiffs.
J. Francis Roche, City Solicitor (by brief and orally), for the defendant.
The Trial Court properly ruled that the exclusive right granted the plaintiffs by section 3 of this lease was prohibited by the provisions of Laws 1939, c. 224, s. 11, and that this section of the lease could not be performed without violating said statute and was therefore void.
In our opinion, the intent of said statute is to prohibit the granting of any type of exclusive right for the use of any landing area or air navigation facility upon which State or Federal funds have been expended as they were on the Manchester airport. It is true that the exclusive right granted the plaintiffs is limited to commercial flying activities and is subject to certain rights of the Boston Maine Transportation Company. However said section 3 grants to the plaintiffs the right to exclude all others from using the landing area or air navigation facilities for commercial purposes and is consequently in violation of the provisions of said statute that there shall be no exclusive right in such area or facility.
Laws 1939, c. 224, does not expressly declare that contracts made contrary to its provisions shall be void. However unless it so intends this statute has no other apparent purpose. Albertson v. Shenton, 78 N.H. 216; Burque v. Brodeur, 85 N.H. 310, 313; In re Johnson's Estate, 339 Ill. App. 110; Bell v. Telephone Co., 149 Ohio 157; Hederman v. George, 212 P.2d 841; 12 Am. Jur. 652; 17 C. J. S. 555; Restatement, Contracts, s. 580. Section 3 of said lease is therefore void.
The Court found, and properly so, that "so far as the buildings which were leased by the defendant to the plaintiffs the statutes in question do not apply." The plaintiffs argue that their action is based on the wrongful re-leasing of such buildings by the defendant, which resulted in their eventual eviction therefrom, and not on a violation of the provisions of said section 3 of the lease. They argue further that defendant's motion to dismiss their action because based on a violation of the above statutes was therefore improperly granted by the Court.
The original declaration and all amendments thereto set out as the basis for recovery that the plaintiffs had certain rights in the Manchester airport which were interfered with or violated by action of the defendant. The plaintiffs have no rights in the Manchester airport except those granted to them by the lease in question. To recover they must necessarily rely on this lease, on rights granted thereby to them by the defendant. Some of these rights are in themselves legal, one of them is illegal. In such a situation "[t]he inquiry is whether the parties reached an agreement regarding the various items as a whole or whether the agreement was reached by regarding each term as a unit . . . . If the parties gave a single assent to the whole transaction, the contract is indivisible, while it is divisible if they assented separately to several things. . . . By great prevalence of authority an invalid or unenforceable part of an entire contract bars any recovery on the other part of the contract." Lemire v. Haley, 91 N.H. 357, 359, 360; Gauthier v. Laing, ante, 80.
The record in this case does not permit any conclusion other than that the other rights of the plaintiffs are so mingled and bound together with the provisions of said section 3 that they cannot be separated. The whole lease is therefore void and no recovery can be had on any part of it. Piper v. Railroad, 75 N.H. 435, 439; Meredith v. Fullerton, 83 N.H. 124; 6 Williston, Contracts (Rev. ed.) ss. 1781, 1782; Restatement, Contracts, ss. 606, 607.
If the Court did not state accurately in its decree the basis of plaintiffs' claim, no right of the plaintiffs was affected thereby because they cannot recover in their action on any basis.
In view of the result reached it is unnecessary to consider the effect of Civil Aeronautics Act of 1938 (52 U.S. Stat. 973).
Exception overruled.
All concurred.