(1955), as an authority in support of their contention. But that case had to do with the question of governmental immunity from an action for negligence and not with the matter of immunity from the application of the antitrust laws. The history of immunity or want of immunity in tort actions with respect to municipal corporations is to say the least inconsistent and imprecise. It deals with the difference between discretionary and ministerial acts by municipal corporations as well as efforts to distinguish governmental functions exercised solely for the public at large from those for the private benefit of the municipality. Thus it has been held that fire prevention, police and education are governmental functions while activities related to municipal railways, airports, gas, water and light systems are proprietary. But there has been no consistency in the decisions of the courts. 54 Harv. L. Rev. 437, 442, 34 Yale L.J. 129, 22 Va. L. Rev. 910, 914-917, Hesse v. Rath et al., 249 N.Y. 436, 164 N.E. 342 (1928), Scibilia v. City of Philadelphia, 279 Pa. 549, 124 A. 273 (1924), City of Cleveland v. Ruple, 130 Ohio St. 465, 200 N.E. 507 (1936).
Nor does District of Columbia v. Green, supra, any longer have its original vitality. Its ruling was undercut in Elgin v. District of Columbia, 119 U.S. App. D.C. 116, 337 F.2d 152 (1964). Moreover, in the recent case of Spencer v. General Hospital of the District of Columbia, 138 U.S. App. D.C. 48, 425 F.2d 479 (1969), the Court of Appeals sitting en banc provided "a formal interment of the 'governmental-proprietary' test of immunity."
In applying the "one man one vote" principle, the Supreme Court has considered the building and running of hospitals and the establishing of a housing authority as carrying out governmental functions. Avery v. Midland County, 390 U.S. 474, 476-477, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).
In City of Cleveland v. Ruple, 130 Ohio St. 465, 200 N.E. 507, the Cleveland municipal stadium and the related city-owned structures, including public halls and a parking garage, were held to have been constructed and leased for public purposes. That such purposes attach to the stadium here is evident from a review of the District of Columbia Stadium Act.
The Robert F. Kennedy Stadium was constructed pursuant to an Act of Congress originally enacted in 1957 and subsequently amended in 1958 and again in 1959. § 2-1720 D.C. Code (1967). That statute expressly authorized the Armory Board to construct, maintain and operate the stadium "in order to provide the people of the District of Columbia with a stadium suitable for holding athletic events and other activities and events of a nature requiring such a facility." In order to accomplish that purpose the Secretary of the Interior was authorized to acquire "by gift, purchase, condemnation or otherwise" certain described property and to enter into a contract with the Armory Board for the construction, maintenance and operation of the stadium which contract was to be for a term not exceeding thirty years. § 2-1721 D.C. Code (1967). The Armory Board, in order to carry out the purposes of the Act, was authorized among other things to determine all questions concerning the use of the stadium for the purposes of the Act, to operate or contract for the operation of concessions deemed appropriate for the purpose for which the stadium might be rented or leased, to furnish services to lessees as in the judgment of the Armory Board were necessary or suitable for carrying out the purposes of the Act, and to lease the stadium for any of the purposes of the Act at such rental values and for such periods of time as the Board should determine. It was pursuant to the authority thus vested in the Board that the lease complained of by the plaintiffs was entered into by the Redskins. § 2-1723 D.C. Code (1967).
That lease was executed on December 24, 1959, for a term of thirty years, which term was to commence with the football season of 1961, and to terminate at the conclusion of the football season of 1990. As the legislative history of the District of Columbia Stadium Act reveals, there would have been no stadium unless a long-term lease could be negotiated by the Armory Board with the Redskins. When the legislation was under consideration by the committees of Congress the then Chairman of the Armory Board asserted that without a long-term Redskin lease the stadium could not be constructed.
The fact that there is a thirty-year lease with the Redskins is significant for two reasons. First, the Stadium Act provides that the Secretary of the Interior's contract with the Armory Board for the construction, maintenance and operation of the stadium was to be for a term of not more than thirty years. Thus, that contract and the Redskins' lease are for approximately the same thirty years. Second, Congress authorized the Armory Board to provide for the payment of the construction, operation and maintenance of the stadium through the issuance of bonds with the principal payable not later than thirty years from the date of issuance.
Thus, the Armory Board was not only authorized to provide the people of the District of Columbia with a suitable stadium but it was obligated to provide for the payment of the construction, operation and maintenance of the stadium through a bond issue. The sinking fund for the payment of the bonds' principal and interest is to be derived from the receipts resulting from the exercise of the Board of its statutory powers, including the leasing of the stadium. Faced with the obligations imposed by the Act and aware that a long-term lease with the Redskins was necessary if those obligations were to be met and the purposes of the Act accomplished, the Armory Board entered into the complained-of lease agreement. Thus, the leasing of the stadium was pursuant to the mandate of the Act and was governmental action. As such it was as much exempt from the antitrust laws as was the exclusive agreement entered into by the Massachusetts Port Authority in its exclusive lease to the Butler-Boston Company and the exclusive franchise contract between the Clark County Commission and Clark Sanitation, Inc.
Since the Armory Board's conduct was lawful the Redskins did not act illegally in entering into the lease.
To conclude otherwise "would be an unreasonable restriction" on the Board's freedom. E.W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52, 56, cert. denied, 385 U.S. 947, 17 L. Ed. 2d 226, 87 S. Ct. 320 (1966), Alabama Power Co. v. Alabama Electric Cooperative, Inc., 394 F.2d 672, 677, rehearing denied, 397 F.2d 809 (1968). No violation of the Act can be made out even where there is a restraint upon trade or monopolization if it resulted from valid governmental action. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 136, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961).
Notice has been taken of the other contentions of the parties. Some are inappropriate for consideration on motions for summary judgment; others are without merit.
The motion of defendants Armory Board, Pro-Football, Inc. (Redskins) and the National Football League for summary judgment on Counts 1, 2 and 3 of the second amended complaint is granted.
The motions of plaintiffs on Counts 1, 2 and 3 of the second amended complaint are denied.