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in harmony with that of some of the States, and therefore State courts were free to decline jurisdiction of suits arising under the act. To this contention the Court replied (p. 57):

“The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State.”

The Court concluded (p. 58) :

“We are not disposed to believe that the exercise of jurisdiction by the State courts will be attended by any appreciable inconvenience or confusion; but, be this as it may, it affords no reason for declining a jurisdiction conferred by law. The existence of the jurisdiction creates an implication of duty to exercise it, and that its exercise may be onerous does not militate against that implication. Besides, it is neither new nor unusual in judicial proceedings to apply different rules of law to different situations and subjects, even although possessing some elements of similarity, as where the liability of a public carrier for personal injuries turns upon whether the injured person was a passenger, an employee or a stranger. But it never has been supposed that the courts are at liberty to decline cognizance of cases of a particular class merely because the rules of law to be applied in their adjudication are unlike those applied in other cases."

The doctrines expressed in this old case of course had even at the time of the decision long been commonplaces; but it is submitted that these principles are of themselves sufficient to establish the power of Congress to enact the section in question, and this quite aside from the consideration of the full faith and credit clause which will follow.

Congress unquestionably has plenary power under the commerce clause to exclude the states entirely from the application of their workmen's compensation laws to interstate air carriers and their employees. As Congress chooses, it may exclude the States from the field entirely, or only partially. If it chooses to do neither, the States continue to apply their laws only at the sufferance of Congress. If Congress may entirely prohibit state action in this field at any time, it may permit state action only on condition, and such conditions may be any that Congress may see fit to impose for the protection of commerce. Hence Congress may authorize the making of regulations by which will be determined the conflict of laws principles to be followed by the various States with respect to workmen's compensation laws. The States would be in no better position to object that the Federal regulations thus enacted under the commerce clause were obnoxious to their local policies, than was the State of Connecticut to object to the Federal Employers' Liability Act. The passage last quoted above would seem to be a sufficient argument against any such objection to the proposed regulations.

When to the commerce clause we add the full faith and credit clause, there seems to be little doubt that there is ample constitutional power to enact the proposed amendment.

Article IV, section 1 of the Constitution provides :

"Ful faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof."

Admittedly, Congress heretofore has apparently never exercised the power thus conferred to alleviate the confusion in the field of conflict of laws by regulations prescribing which of two or more conflicting State statutes is to prevail. But there is small room for doubt that this power exists.

The history of this clause in the Constitutional Convention offers compelling evidence that the clause was intended to empower Congress to legislate in the manner nresently proposed. Valuable accounts of the history of this clause in the Convention appear in the articles of Prof. Edward S. Corwin and Prof. Walter Wheeler Cook on "The full faith and credit clause," annearing, respectively, in 81 U. Penn. L. Rev. 371 and 28 Yale Law Journal 421. Only three steps in this history need be noted for present purposes. In the final stages of the draft of this clause a motion was offered on the floor of the Convention by Gouverneur Morris to confine the "acts" and "records” to which full faith and credit was to be given by the States to those of "courts and magistrates." Accordingly, the clause was recast in committee to confine Congress's power to that of prescribing the manner in which "such acts, record, and proceedings shall be proved, and the effect which judgments obtained in one State shall have in another," whereupon Morris moved to strike out the phrase "which judgments obtained in one State shall have in another,” and proposed the substitution for it of the word “thereof." Despite a warning by Johnson of Connecticut, that this would authorize the new government “to declare the effect of the legislative acts of one State in another State" and the protest of Randolph that such loose definitions of power would enable the new government to usurp all the State powers, the amendment was carried.

Up to the present time, however, the Congress has not chosen to exercise the power against which the opponents of the clause warned the convention. Only two sections (905 and 906 of the Revised Statutes) have been enacted pursuant to this clause. Section 905 prescribes the rules for the authentication of the legislative acts of the several States and territories and of “any country subject to the jurisdiction of the United States," and of the records and judicial proceedings of the same, and provides that “the said records and judicial proceedings authenticated and affirmed as aforesaid shall be given such faith and credit in every court, of the United States as they have by the law and usage in the courts of the State from whence the said records are or shall be taken.” Section 906 lays down similar provisions with reference to nonjudicial records. While Congress in section 905 has laid down a rule for the authentication of the statutes for the several States, it has never enacted a law prescribing the extraterritorial operation of State statutes. Has it power to do so?

Before considering the decisions of the Supreme Court it is of interest to note that neither Corwin nor Cook entertain serious doubt as to the existence of this power.

At page 375 of his article, cited above, Corwin observes that “the practical effect” of sections 905 and 906 “to date has been, in the main, to leave the extrastate protection of rights, except such as have ripened into a definite judgment, exactly where the Constitution found it, that is to say, on a basis of comity, and so at the mercy of the adverse local policy of the forum state.”

(P. 387): "The question arises whether the application to date, not by the Court alone but by Congress and the Court, of article IV, section 1, can be said to have met the expectations of its framers. In the light furnished by the account given in an earlier paragraph of the framing of the clause that may be seriously doubted. The protest was raised against the clause, it will be recalled, that in vesting Congress with power to declare the effect State laws should have outside the enacting State, it enabled the new Government to usurp the powers of the States; but the objection went unheeded * * *.

"* * * Indeed, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the 'full faith and credit clause. Congress has the power under the clause to decree the effect that the statutes in one State shall have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union, and that no other kind shall. Or, to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of State legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable.

"Nor should the limited initiative taken by the Court in this matter in recent years deter Congress from acting. The little that can be accomplished by the judicial process of inclusion and exclusion will go neither far nor fast toward meeting present-day necessities. Besides it is to Congress that the Constitution itself reserves the initiative in the application of the full faith and credit clause, not the Court."

Cook comes to the same conclusion (op. cit. p. 432) :

“(4) Compulsory recognition by the States of rights created by legislative acts of other States. Here we enter upon an unexplored field. Down to the present time there seems to have been no discussion of power of Congress to 'prescribe' the 'effect' (legal consequences) in other States of State legislative acts. It is well settled that under the present act of Congress in regard to full faith and credit

no State is required to recognize as constituting causes of action groups of facts so recognized by the law of other States, even though the operative facts constituting these causes of action, or the more important of them, occurred in these other States. The matter is left to be regulated by each State, chiefly in accordance with the rules governing the conflict of laws, with resulting chaos and confusion, not to say injustice. * * * “* * * it is well worth while to inquire into the powers of Congress with reference to the enactment of legislation to make compulsory this interstate enforcement of vested rights instead of leaving it, as now, to depend upon the whim of the State legislature or the notions of the State court as to the conflict of laws. A careful study of the evolution in the Constitutional Convention of the wording of the full faith and credit clause will, it is believed, convince the impartial student that the alteration in the language of the clause to include acts of the State legislatures (“public acts'), and the final shaping of the clause so as to give Congress power to prescribe the effect not only of judgments but also of such public acts, was intended by the more nationally minded members of the Convention to confer upon Congress some such power. True, we do not know exactly what the members of the Convention expected Congress to enact in the way of legislation; but it seems obvious that they were conscious that they were conferring in somewhat general language power on Congress to deal with the matter. If a law of the kind proposed would not prescribe the effect' of State statutes in other States, what kind of law would? It is difficult to see. If legislation of this kind should at any time be undertaken, it would be necessary, in cases in which the operative facts occurred in more than one jurisdiction, to determine very carefully what jurisdiction should have power to determine the legal consequences of such powers. . It is conceived that in place of the present chaotic condition which obtains in the field of the conflict of laws as applied to interstate relations, Congress could by enacting such a statute substitute, at least to a large extent, a code of uniform national law.” While the views of these scholars are interesting, our ultimate concern of course is with the views of the Supreme Court. The Court has stated unequivocally that Congress has the power contended for by Cook and Corwin. The first intimation of the Court's views appears to be in the dissent of Mr. Justice Stone in the case of Yarborough v. Yarborough ( (1933) 290 U. S. 212, at 215, footnote 2), in which Justice Stone cites with approval the articles of Cook and Corwin which have been quoted above. This case involved the question of whether South Carolina was required to accord full faith and credit to a Georgia law which operated to relieve a husband, from whom his wife had obtained a divorce in Georgia, from all obligation to provide for the education and maintenance of their minor child. Under its own law, South Carolina had directed the husband to make provision for the child. The majority of the Court held that the Georgia law, as a legal incident of the Georgia divorce decree was entitled to full faith and credit, and therefore South Carolina was without power to enforce a decree for maintenance of the child. Justices Stone and Cardozo dissented, and in the footnote above-referred to, Justice Stone made the following statement with respect to the powers of Congress under the full faith and credit clause: “The mandatory force of the full faith and credit clause as defined by this Court may be, in some degree not yet fully defined, expanded or contracted by Congress. Much of the confusion and procedural deficiencies which the constitutional provision alone has not avoided may be remedied by legislation. (Cook, Powers of Congress under the Full Faith and Credit Clause, 28 Yale Law Journal, 421; Corwin, the “Full Faith and Credit” Clause, 81 University of Pennsylvania Law Rev. 371; cf. 33 Columbia Law Rev. 854, 866.) The constitutional provision giving Congress power to prescribe the effect to be given to acts,

records and proceedings would have been quite unnecessary had it not been in

tended that Congress should have a latitude broader than that given the courts by the full faith and credit clause along. It was remarked on the floor of the Constitutional Convention that without the extension of power in the legislature, the provision “would amount to nothing more than what now takes place among all independent nations,” (Hunt and Scott, Madison's Reports of the Debates in the Federal Convention of 1787, p. 503.) The play which has been afforded for the recognition of local public policy in cases where there is called in question only a statute of another State, as to the effect of which Congress has not legislated, compared with the more restricted scope for local policy where there is a judicial proceedings, as to which Congress has legislated, suggests the congressional power.” The next statement appears in the Alaska Packers' case, discussed supra (294 U. S. 532, 546), where the Court states: in the case of statutes, the extrastate effect of which Congress has not prescribed, where the policy of one State statute comes into conflict with that of another, the necessity of some accommodation of the conflicting interests of the two States is still more important. True, the Court's indication that Congress has the power to prescribe principles of the conflict of laws is stated in the form of a parenthetical qualification, but ... the meaning of the phrase is unmistakable. Finally, in the Pacific Insurance case, also discussed above (306 U. S. 466, 502), the Court states: In the case of statutes, the extrastate effect of which Congress has not prescribed as it may under the constitutional provision * * * the full faith and credit clause does not require one State to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another State * * *. It would hardly be possible for the Court to declare in clearer terms that Congress has power under the full faith and credit clause to determine the principles of the conflict of laws by which the States shall be governed. It is true of course that both statements are dicta, but no opinions which the Court states on this point can be other than dicta until Congress enacts legislation governing and regulating the conflict of laws. The conclusions which follow from the opinions discussed herein appear to be sufficiently obvious without further elaboration. The need for the proposed amendment is urgent, and the enactment of the section is within the ample power of Congress under the Constitution.

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MEMORANDUM ON THE ZONING PROVISIONS OF H. R. 1012 BY HOWARD C. WESTWOOD

The proposed zoning provisions are set forth in sections 3101 through 3109 of H. R. 1012. PROVISIONS OF THE BILL SUMMARIZED

They provide in substance that the Administrator shall formulate and maintain, in accordance with uniform standards, a Nation-wide program for zoning in the vicinity of landing areas and in certain other places not in the vicinity of airports. The Administrator is directed to invite the cooperation of the States in carrying out this program and to encourage by various means its administration by them. But the Administrator is directed to establish air safety areas whenever this is necessary by reason of the failure of the States to act, or for other reasons. The Administrator is in such cases to clearly mark out the limits of such areas and file his description of these areas with the registers of deeds, or like officials, in whose territories the air safety areas lie. The Administrator is to promulgate regulations governing the maximum height of structures and objects of natural growth to be applicable in such areas. Standards are set forth to which such regulations are to conform; for example, the Administrator is to take into account the value of the property affected, the nature of the neighborhood, the military importance of the landing area, etc. A landowner whose land contains no structure or object of natural growth, the height of which exceeds that prescribed in the regulations, is forbidden to permit or cause such structure or object to be changed or grown so that its height will be in excess of the prescribed maximum, and the Administrator is empowered to require the correction of any structure or object caused or allowed to exceed such maximum. If the structures or objects of natural growth at the time the regulations are adopted exceed the permissible maximum height, the Administrator is empowered, after notice and hearing, to require that such structures or objects be altered to conform with the regulations. In an emergency the Administrator may order the removal of such obstructions without notice and hearing. Provision is made for judicial review of any order of the Administrator, whether it requires the alteration of structures or objects of natural growth or merely restricts the use of land containing no structures or objects in excess of the maximum height, by prohibiting the causing or growth of obstructions exceeding the maximum. Just compensation is provided for any landowner who is required to alter any obstruction which existed at the time the regulations were promulgated. Such compensation is to be fixed by the Administrator in accordance with prescribed standards, and judicial review of such orders is provided in order that the courts may review the question of whether the compensation is just. The provisions are silent, however, on the question of whether a landowner who is merely restricted as to the height of structures or objects of natural growth on his land, but is not required to alter any such structures or objects, for the reason that none in excess of the maximum height existed on his land at the time of the promulgation of the regulations.

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There are other provisions, but those summarized are the only ones with which this memorandum is concerned.

CoNSTITUTIONAL QUESTIONs

The questions to be examined are several. First of all, is the question whether these provisions are within the constitutional authority of Congress. This inquiry should and will be considered as entirely separate from that of whether any limitations exist upon the exercise of such power by virtue of the Federal due-process clause requiring just compensation for the taking of property. Assuming, as will be established, that the enactment of these provisions is within the power of Congress under the Constitution, the question still remains as to the requirements in the present instance of the fifth amendment, forbidding the taking of private property for public use without just compensation.

It will be noted again that compensation is expressly provided for those landowners required to alter structures or objects in excess of the maximum height, when such obstructions existed prior to the time the regulations were adopted. On the other hand, the enactment is silent on the question of whether just compensation is to be allowed a landowner who has no forbidden obstructions upon his land upon the effective date of the regulations, but who is restricted in the use of the land to the building of structures or allowing the growth of trees, etc., only to the prescribed height. Hence, the due-process problem necessarily falls into two parts: (1) Does due process require compensation with respect to those landowners required to alter existing structures, and (2) is compensation required to be paid to landowners who are not required to alter existing obstructions but only restricted in the use of their land to structures and objects no higher than the prescribed maximum?

This memorandum will be divided into two main parts, the first dealing with the question of whether the proposed enactment is valid as an exercise of a constitutional power, and the second dealing with various aspects of the requirements of the fifth amendment.

I. POWER OF CONGRESS

The provision declares the zoning program to be essential to the proper development and protection of military aeronautics, air commerce, and the Postal Service, and to the protection of the value of the investment of funds of the United States in landing areas and other air-navigation facilities. It thus fixes its constitutional basis in the postal power, the war power, the commerce power, and the interest of Congress to protect facilities of commerce in which Federal funds have been invested. Either the postal power, the war power, or the commerce power, in and of itself, would be sufficient to justify the enactment. Since they converge in the present zoning provision, their combined support of these sections should leave no room for doubt as to their constitutional validity.

The postal and war powers will be discussed only briefly, since the commerce power undoubtedly furnishes an ample constitutional basis, and, moreover, has in other fields afforded the ground for sustaining numerous Federal regulations which are closely analogous to those now proposed.

A. THE POSTAL POWER

The Constitution grants to Congress the power to establish post roads and to make all laws necessary and proper to carry this power into execution. These powers were not intended by the framers of the Constitution to be limited to the instrumentalities of commerce or to the Postal Service in use when the Constitution was adopted. As the Court said in (Pensacola Telegraph Co. v. Western Union Telegraph Co. (1878), 96 U. S. 1, 9), “They keep pace with the progress

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