2. Control of intrastate air commerce necessary as a practical matter. Even laying to one side the clear analogy to navigable waters, there is ample authority sustaining complete Federal regulation of intrastate aeronautics. Communication by radio-the only other activity employing the air-is subject to the power of Congress just as though there were no State lines. The Supreme Court has said:

* *

"No State lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities *" (Federal Radio Commission v. Nelson Bros. Bond and Mortgage Corp., 289 U. S. 266, at 279 (1933)).

Again, the Court has said:

"By its very nature broadcasting transcends State lines and is national in its scope and importance-characteristics which bring it within the purpose and protection and subject it to the control, of the commerce clause." (See Fishers Blend Station v. State Tax Commission, 297 U. S. 650 at 655 (1936).)

As the Chairman of the Civil Aeronautics Board pointed out in his testimony, because of the very nature of aircraft, and the peculiar characteristics of the medium through which aircraft operate, virutally any aircraft operation can within a matter almost of seconds affect interstate movement of other aircraft. Indeed, the situation is hardly to be distinguished from radio communication. Practical considerations have led the courts to sustain complete congressional control in the field of radio; very similar practical considerations are applicable in the field of aeronautics.

A recognition that Congress can step into the field of intrastate commerce where it is necessary or desirable as a practical matter to do so, in order adequately to protect or promote interstate traffic, is also found in the cases relating to the Safety Appliance Act. Under that act the Court held in Southern Railway Co. v. United States (222 U. S. 20 (1911)) that it was constitutional for Congress to prescribe the safety appliances on railroad cars moving solely intrastate. The Court stated that since interstate cars would move over the same railroad, Congress could require the intrastate cars to maintain whatever standards it deemed appropriate. Even though an entire train moved solely intrastate and carried solely intrastate traffic, the Court said that Congress could impose its standards with respect to that train and its movement so long as it operated on a highway by rail which was used also by trains carrying some interstate traffic. Nor is it necessary under the Constitution that Congress confine its regulation to particular activities which are shown actually to endanger commerce among the States. It may so affect intrastate activities as to assure the elimination of potential danger. The Chairman of the Civil Aeronautics Board in his testimony referred to the case of Rosenhan v. United States, decided on November 16, 1942, by the Circuit Court of Appeals for the Tenth Circuit. The court's opinion in that case amply justifies the regulation of the entire air space proposed in the bill before the committee. Under the present act any aircraft operation on an airway, even though the operation is wholly intrastate, is subject to all of the safety regulation imposed by the Civil Aeronautics Act. In the Rosenhan case an intrastate flight had occurred on a civil airway without compliance with the Federal regulations respecting certification of the aircraft's airworthiness. A civil penalty was imposed. Upon suit by the United States to recover the penalty, the defendant alleged that his flight was wholly intrastate and did not in any way endanger any interstate operation. Judgement was rendered on the pleadings so that the facts pleaded were assumed to be true. From the judgment for the United States the defendant appealed, but the Circuit Court of Appeals sustained the lower court, saying:

"The appellant contends that on a trial of the case he could have shown that the flight of his aircraft in the designated civil airway did not in any way endanger or interfere with safety in interstate commerce. We may concede that he could have shown that at the time the aircraft in question was in flight through or upon the designated airway no other aircraft was within dangerous range, but he cannot avoid the incidence of the act by showing that these particular flights did not actually endanger interstate commerce. Congress has not seen fit to limit the question of safety in these circumstances to a manifestation of actual danger, rather it has sought to eliminate all potential elements of danger. The declaration that no aircraft shall operate in a designated civil airway without having currently in effect an airworthines certificate evinces congressional judgment that such an operation is detrimental to the safety of those engaged in interstate commerce or those who make use of its facilities. 83838-43-15

We cannot say that this exerted regulation does not have any reasonable relationship to the promotion of safety-in-air commerce, or that it does not rest upon any rational basis, when considered in the light of the broad legislative purpose. We conclude that such statutory precautions do not transcend the powers granted to the Congress over interstate commerce, or unduly encroach upon the powers reserved to the sovereign States."

We quote somewhat at length from the opinion because it brings out very clearly how extensive the power of Congress is. You will see that the court was assuming that in the particular instance the defendant might have proved that there was no actual danger to any interstate commerce. But, said the court, Congress does not have to limit its regulation in the light of the particular circumstances of a particular activity. It may act more broadly and, as the court said, "eliminate all potential elements of danger" to interstate commerce. It has been pointed out that the civil airways within the 48 States in the recent past already embraced within their bounds a total area amounting to onefifth of the entire area of the 48 States. With the multiplication of civil airways, and the multiplication of interstate flights or of intrastate flights on which interstate traffic is carried, which will follow very rapidly after the end of the war, it is quite apparent that the areas within which there might even theoretically occur some isolated aircraft operation that might not actually endanger interstate commerce will be so diminished as virtually to have reached the vanishing point. This possibility is emphasized when we realize that many interstate operations can and do properly occur off the civil airways so that the mere existence of an area not penetrated by a civil airway by no means indicates that that area will not be or is not actually used for interstate purposes. When one adds to this consideration the further fact that, due to abrupt weather changes or other conditions, a perfectly harmless isolated flight can within a very short time become a menace, there surely remains no question whatsoever concerning the power of Congress to regulate all aerial operation. Judicial decisions already render amply sustain this power.

3. Economic intrastate regulation.

To this point we have been referring mainly to the safety aspects of the problem. Much the same consideration, however, bear upon and sustain economic regulation by Congress of all commercial aerial operations.

In the first place it is of course quite true that the finest safety regulations within the power of man to conceive will not assure safety if the operators are in an unsound economic conditions. This fact was brought out quite forcefully by the report of the Senate Committee on Commerce pursuant to a Senate resolution adopted in 1935 authorizing that committee to investigate the safety of air transportation. Senator Copeland was chairman of the committee. We refer to Senate Report No. 185, Seventy-fifth Congress, at page 27, where the committee states:

"It should be unnecessary to point out that a profitable operation is essential to safety. It is bad enough for ordinary corporations to be harassed by losses, but in the case of the air vehicle, when safety depends on expensive equipment there must be ample funds or the ships must be grounded. There must be profits if adequate and timely improvements in personnel, planes, and equipment are to be provided. Because a few persons made abnormal profits from speculative activities should not obscure the obvious truth that safety and efficiency demand reasonable profit in operation."

Therefore, in promoting safe operations in commerce among the States it is quite appropriate that Congress take action assuring that the intrastate operation will have a sound economic basis.

But entirely apart from the obvious fact emphasized by the Senate-committee's report, recent decisions of the Supreme Court will sustain the economic regulation proposed in this bill. If Congress finds that the development of intrastate commercial operations by air should be carried forward under sound regulation in order to promote commerce among the States by avoiding the possibility of destructive or unfair competitive practices as between interstate and intrastate commerce, by promoting an integrated air transport network throughout the Nation, by forestalling the possibility of local barriers to the free flow of commerce among the States, by fostering the use of aeronautical equipment within States so as to promote interstate commerce in such equipment and otherwise ample constitutional justification for action by Congress to attain such ends will be found in the case of Wickard v. Filburn, decided by the Supreme Court of the United States on November 9, 1942. That case involved the constitutional validity of the quota provisions of the Agricultural Adjustment Act applicable to

the growing of wheat. The Court held that under the commerce clause Congress constitutionally may restrict the right of a farmer to grow wheat even for his own consumption on his own farm. The Court pointed out that such a restriction, by forcing some farmers into the market to buy wheat which otherwise they might provide for themselves, would stimulate the market and thereby ultimately increase the flow of interstate commerce in wheat. The Court concluded:

"This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect of defeating and obstructing its purpose to stimulate trade through increased prices."

In this connection the Court likewise stated that the mere fact that the isolated activity on the part of the particular farmer involved in that case may have had but a trivial and inconsequential effect upon interstate commerce was not enough to remove his activity from the scope of Federal regulation; the Court stated that, in appraising the constitutionality of Federal regulation, the overall consequences must be examined.

In the Filburn case there were involved 239 bushels of wheat harvested from less than 12 acres planted and harvested in excess of the established quota. If the tenuous relationship between that wheat and the interstate market sustains a Federal regulation prohibiting a farmer from consuming such wheat on his own farm, there surely can be no question concerning the power of Congress to regulate intrastate operations by air. And it is to be noted that the decision of the Supreme Court in the Filburn case was without dissent.

There is, it is true, a highly theoretical possibility that at some time or other there might be a commercial operation between points in a single State which for some limited period might have no immediate effects upon interstate commerce. But any such hypothetical possibility is far more remote than the possibility that home-grown wheat in a particular case subject to the quota restrictions of the Agricultural Adjustment Act would have no interstate consequences.

Actually, however, because of the very nature of commercial air transportation, it is most unlikely that there will ever be a case of an intrastate operation which does not affect interstate commerce fairly directly either by competition or otherwise. And if Congress in its wisdom determines that intrastate systems are to be integrated with the interstate systems in order most effectively to promote the commercial and military strength of the Nation and to provide to every part of the Nation the means for the swiftest possible transportation to every other part of the Nation, there is more than clear authority in the Filburn case to sustain the constitutionality of such action.

4. Conclusion.

Therefore, the proposed Federal regulation of intrastate operations by air would be constitutional not only because of the analogy to the power of Congress over the navigable waters which the Supreme Court has said are subject to national planning and control, but also under decisions of the Supreme Court authorizing Congress to regulate intrastate activities in many other fields.

To this point we have not referred to any source of power other than the commerce clause. However, the admitted power of Congress to promote the postal service and the national defense, and the peculiarly intimate relationship between civil aeronautics and the postal service and the national defense are not to be overlooked.

DISCUSSION OF SECTION 34 OF H. R. 1012, PROPOSING A NEW SECTION 802 (a) FOR THE CIVIL AERONAUTICS ACT

The section in question provides:

"SEC. 802. (a) The regulation of air commerce is declared to be a matter of special national interest. No State, Territory, or possession of the United States, or subdivision thereof, shall regulate air commerce nor shall it impose or enforce any regulation in a manner which hinders, burdens, or interferes with the free flow of such commerce or substantially impairs uniformity in the conditions pursuant to which such commerce is conducted throughout the United States." Since the Civil Aeronautics Act is a comprehensive statute regulating practically all phases of air commerce, is it not a plain manifestation of the intention of Congress to "occupy the field," with the result that any State regulation of the same subject matter would necessarily be invalid as in conflict with a Federal regulation of interstate commerce? Unfortunately the decisions of the courts

are such as to leave it unclear whether State regulation is excluded unless Congress makes its intention absolutely clear.

This discussion will examine decisions of the Supreme Court which bear on this point, and will establish that it cannot be predicted with any degree of assurance that the Supreme Court, in the absence of a provision such as the proposed section 802 (a), would hold the States to be excluded from regulating this field. A number of cases have arisen in which the State regulation was assailed as repugnant to the Federal power to regulate interstate commerce, even though no Federal statute on the subject had been enacted, but these cases will not be considered. Only those cases will be considered in which Congress had acted with respect to a particular subject matter and it was claimed that the State regulation was in conflict not merely with the Constitution, but also with the Federal statute as an exercise of Federal power under the Constitution. Moreover, we will discuss only those cases where the Federal act was a regulation of interstate commerce, as distinguished from a Federal law enacted upon some other constitutional basis. The cases will be grouped roughly into two classes according to the subject matter involved. In the first group will be discussed some of the typical leading cases involving the effect of Federal regulation with respect to a miscellaneous variety of subject matters (livestock, food, telephone companies, labor relations, etc.), while in a second group will be discussed cases dealing with various Federal and State regulations affecting interstate transportation. Finally, a summary of the principles involved will be made and conclusions drawn.

I. MISCELLANEOUS

Reid v. Colorado ((1902) 187 U. S. 137), involved the question whether a statute of Colorado was in conflict with the Federal Animal Industry Act (23 Stat. 31). This act was a measure which was fairly comprehensive in scope. It directed the Commissioner of Agriculture to organize a department to investi. gate and report on the causes of disease among domestic animals and the means for the prevention and cure of such diseases. The Commissioner was also au thorized to draft regulations for the suppression of animal diseases and to cooperate with the various States to accomplish this end. The Commissioner was also directed to take necessary steps to prevent the exportation of diseased livestock from the United States. Railroad companies and ships were forbidden knowingly to transport diseased animals in interstate commerce, and the driving of diseased animals on foot across State lines with knowledge that they were diseased was likewise prohibited. Violations of these latter provisions were made misdemeanors punishable by fine and imprisonment.

The Colorado statute, on the other hand, declared it a misdemeanor to bring any livestock into the State prior to an inspection of the stock by a State official and the procurement of a certificate to the effect that such stock upon inspection was found to be free from disease. This statute, of course, required the inspection regardless of the shipper's knowledge or lack of knowledge of the existence of disease.

A shipper of livestock imported the stock into Colorado without complying with the State law. He refused to assent to the State inspection, and showed to the State authorities a certificate signed by a Federal inspector, and apparently issued pursuant to regulations under the Federal act, which certified that the Federal inspector had carefully examined the stock in Texas and found it to be free from disease. He was nevertheless convicted of violating the State law, and he appealed on the ground that this law was in conflict with the Federal act. The Court held that the Colorado statute was not superseded by the Federal act, and said (p. 148):

"It should not be held that Congress intends to supersede or by its legislation suspend the exercise of the police power of the States, even when it may do so, unless its purpose is clearly manifested."

The Court's solicitude to sustain the State statute is demonstrated by the heavy reliance it places upon the somewhat tenuous argument that by declaring it a misdemeanor to transport stock in commerce knowing them to be diseased, Congress manifested its intention to occupy the field only to a limited extent, and hence intended to reserve to the States the power to forbid the importation of cattle in situations where the shipper might or might not have knowledge of their diseased condition.

In another livestock case, Minz v. Baldwin ((1932) 289 U. S. 346), the application of the principle stated in the Reid case, that Congress by a particular regulation of commerce will not be taken to have excluded the States from the field unless such an intention is clearly manifested, seems to have been carried a

step further. Here plaintiff sought to enjoin a New York official from interfering with plaintiff's shipment into the State of certain cattle which had not been inspected for disease as required by the New York law. The plaintiff contended that the State statute was in conflict with the Federal Cattle Contagious Diseases Acts and therefore void, since, by this act, Congress had manifested its intention of occupying the field of inspections for diseases of interstate shipments of livestock. This act stated that where inspections had been made by Federal inspectors as provided therein, no further inspection was to be made by the States. Plaintiff's cattle had not been inspected by Federal officers in accordance with the Federal act's requirements. The Court, in order to save the State statute, construed the Federal act as follows (p. 351):

"The purpose of Congress to supersede or exclude State action against the ravages of disease is not lightly to be inferred. The intention so to do must definitely and clearly appear * *

66* * * The express exclusion of State inspection extends only to cases where Federal inspection has been made and certificate issued. The clause cannot be read to extend to other cases. This expression of purpose so to limit the exertion of State power strongly suggests that Congress intended not otherwise to trammel the enforcement of State quarantine measures." The suit to restrain the New York officials was dismissed.

The principle most generally pronounced to be controlling in cases of this kind is that Congress will not be deemed to have intended to supersede the State's regulation unless the latter, in terms of its practical administration, conflicts with the act of Congress or plainly and palpably infringes its policy. (See Sinnot v. Davenport (1859), 22 How. 227, 243; Missouri, K. & T. Ry. Co. v. Haber (1898), 169 U. S. 613, 623; Reid v. Colorado (1902), 187 U. S. 137, 148; Savage v. Jones (1912), 225 U. S. 501, 533; Missouri, K. & T. Ry. Co. v. Harris (1913), 234 U. S. 412, 419; Carey v. South Dakota (1919), 250 U. S. 118, 122; Atchison, T. & S. F. Ry. Co. v. Railroad Commission (1931), 283 U. S. 380, 391; Townsend v. Yeomans (1937), 301 U. S. 441, 454; Kelly v. Washington (1937), 302 U. S. 1, 10; cf. Maurer v. Hamilton (1940), 309 U. S. 598, 614.) This principle, however, has not been consistently applied, and, as a result, the decisions dealing with regulations of impure food are not easily reconcilable.

In Savage v. Jones ((1912) 225 U. S. 501), an Indiana statute required disclosure of formulas on food offered for sale while in interstate commerce. The Pure Food and Drug Act (34 Stat. 768) prohibited interstate shipments if misbranded by bearing "any statement, design, or device * * * false or misleading." The Federal law, in other words, only prohibited falsehood, while the State law went further and prohibited silence as to ingredients. The Court, in upholding the State law, said (p. 532):

"Congress has thus limited the scope of its prohibitions. It has not included that at which the Indiana statute aims. Can it be said that Congress, nevertheless, has denied to the State, with respect to the feeding stuffs coming from another State and sold in the original packages, the power the State otherwise would have to prevent imposition upon the public by making a reasonable nondiscriminatory provision for the disclosure of ingredients, and for inspection and analysis?"

On the other hand, in McDermott v. Wisconsin ((1912) 228 U. S. 115), a Wisconsin law required that glucose mixtures offered for retail sale be specifically labeled "glucose flavored with" the flavoring mixture. The Court, in holding the Wisconsin law to be repugnant to the Federal Pure Food and Drug Act, relied upon the consideration that the requirements of the latter in the way of fair branding were less stringent than those of the State and said (p. 133): "Conceding to the State the authority to make regulations consistent with the Federal law for the further protection of its citizens against impure and misbranded food and drugs, we think to permit such regulation as is embodied in this statute is to permit a State to discredit and burden legitimate Federal regulations of interstate commerce, to destroy rights arising out of the Federal statute which have accrued both to the Government and the shipper, and to impair the effect of a Federal law which has been enacted under the constitutional power of Congress over the subject."

A recent case involving State and Federal food regulations is Cloverleaf v. Patterson (1942) 315 U. S. 148). In that case the petitioner was engaged in Alabama in the manufacture for interstate commerce of processed or renovated butter from packing stock butter. An Alabama statute invested State officials with authority to seize packing stock butter (prior to its processing) which did no come up to the State standards. Petitioner brought suit to restrain the Alabama officials from seizing its packing stock butter on the ground that the