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(In the report of the same committee for 1940, 65 Reports of American Bar Association, p. 150, the committee stated:)

Considerable discussion and some differences of view have developed on whether, in line with the mandate of this association in 1938 "to cooperate with the Civil Aeronautics Authority" in a study of the desirability of further State legislation, the committee should push the passage of the Uniform Regulatory Act. The Authority has gone on record to the effect that the State regulatory act should be modified to harmonize with the Civil Aeronautics Act of 1938.

A uniform regulatory act was developed and unanimously adopted by the National Association of State Aviation Officials at their meeting in 1934. А сору of it is set forth in the right-hand column on page 91 of Civil Aeronautics Authority Bulletin No. 4. After the State aviation officials had approved it, it was taken up at the conference of the commissioners on uniform State laws. The commissioners changed the draft. A comparison of the two, paragraph by paragraph, is set forth in Civil Aeronautics Authority Bulletin No. 4. The committee pressed members of the Authority specifically on the suitability of the enactment by the several States of the regulatory act prepared by the commissioners, and was advised that the Civil Aeronautics Authority was unwilling to recommend its passage.

In accordance, therefore, with the policy of cooperation with the Civil Aeronautics Authority, the committee does not recommend the passage of the State regulatory act.

(In the committee's report for 1941 (66 Reports of American Bar Association, p. 221) the committee stated :)

FOREWORD

Just as the competition between warring nations from 1914 to 1918 gave aviation its first impetus as a factor in human affairs, so will the pressure of the present conflict expand the importance of the airplane in our national life to an extent no one can now predict. Legal problems will arise, both domestic and international, which will affect the entire profession. Your committee will not attempt to foretell these problems, but it does submit that their nature will be such as to excite the interest of the entire membership of this association.

THE STATE REGULATORY ACT

In 1935, the National Conference of Commissioners on Uniform State Laws and the American Bar Association, each, at its annual meeting, approved a uniform State regulatory act for aviation. One of the principal reasons for developing this State act was to promote, at the margins where Federal power might stop, uniformity instead of confusion in law and regulation. However, with the rapid growth of air transportation, serious doubt has increased as to whether uniformity could ever be achieved if the State government and the Federal Government each promulgates regulations and administers regulatory departments.

At the time (1935) when the association approved a regulatory act for State passage, the Federal law on the subject avowedly did not cover the entire field. But on June 23, 1938, the Conress of the United States amended the prior law, and passed the Civil Aeronautics Act of 1938. By this act the United States was declared to possess "complete and exclusive national sovereignty in the airspace above the United States," and a Civil Aeronautics Authority was set up to control all "air commerce," to "establish civil airways," and to administer aviation law consistently with treaties (one of which 2 pledges that the United States will procure * uniformity of laws and regulations governing aerial navigation").

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66* *

Referring to changes in the Federal law over aviation, this committee, in its 1939 report, observed:

"It would seem, therefore, that proponents of this new act are prepared to defend its broad scope and its apparently almost unlimited regulation-making powers under all theories

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The committee then pointed out that a study was contemplated on "the question whether the entire field of regulation cannot and should not be covered by Federal law" and recommended "That this association should cooperate in this study, and that all further work on the preparation of State regulation should be postponed until the Civil Aeronautics Authority has completed its study."

1 Air Commerce Act of 1926, as amended June 23, 1938.

2 Pan-American Convention, ratified August 26, 1931.

The association approved the committee's recommendation to postpone promotion of the State regulatory act, and cooperate with the Civil Aeronautics Authority in a study of the question whether the entire field of regulation cannot be covered by Federal instead of State law.

In 1940 this committee reported that it had studied the question and had conferred with the Civil Aeronautics Board (successor to the Civil Aeronautics Authority), and, as a result, could not recommend the passage of the State regulatory act. The association adopted the recommendation of the committee that since the study of Federal and State jurisdictions was not complete It "should continue the study in close cooperation with the Civil Aeronautics Board."

In the light of subsequent Federal law and regulation and subsequent development of the industry, and acceleration of Federal control due to the present emergency, your committee has reached the conclusion that State regulation is not desirable, and that all support of the uniform State regulatory act based upon the association's approval in 1935 should be withdrawn.3 The committee's rea

sons are:

1. It is now patent that only through Federal regulation can the desired uniformity be obtained completely and expeditiously. State acts empower a State authority to promulgate regulations. Even if the actual law remains uniform with other States, there is no way whereby the regulations can be kept so.

2. The Federal Government has, since 1935, through the Civil Aeronautics Act of 1938, virtually preempted the field of regulating aviation.

3. As the industry becomes a paying proposition in all its branches, particularly in local operations, the creation of State regulatory bodies, often honorary in character, is an invitation to exploitation by those not sincerely interested in the development of this important and comparatively new industry.

4. The committee believes that the increasing desire on the part of many Governors and State legislators to spare taxpayers all unnecessary burdens and to cut down, rather than increase, the number of commissions and agencies, should be encouraged by pointing out to them that a State regulatory act for aeronautics is unnecessary.

5. As against the argument that the failure to create a State regulatory body would necessitate the creation of an inordinately large Federal regulatory force to police the industry, your committee suggests that the States can and will provide the necessary cooperation with personnel from their existing agencies. 6. Canons of interpretation which must be used to test the validity of State laws, and to answer the question of whether the Federal law has preempted the entire regulatory field, have undergone considerable change in the past year. In United States v. Appalachian Electric Power Co., 85 Adv. Op. (L. Ed.) 201-218, the Supreme Court (December 1940) held that "the congressional authority under the commerce clause is complete unless limited by the fifth amendment," and, furthermore, "It is no objection to the terms and to the exertion of the power that its exercise is attended by the same incidents which attend the exercise of the police power of the States." Since the recent decision by the Supreme Court of the United States on January 20, 1941, of Hines v. Davidowitz, 85 Adv. Op. (L. Ed.) 366, it was extremely doubtful whether a State statute attempting to regulate an operation within a civil airway, or an operation in any manner connected with or related to air commerce, is valid in view of the Air Commerce Act of 1938.

The Hines decision declared an alien registration act of Pennsylvania invalid. This holding was in spite of prior decisions of the Supreme Court that a State can enforce alien registration acts. Without specifically overruling such prior opinions, the Supreme Court disregarded them, because "in no instance did it appear that Congress had passed legislation on the subject." The Supreme Court decided that when the Federal Government did enact an alien registration law, then the State statute became "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

The Federal Government (Air Commerce Act of 1938) has declared very broad objectives in the aviation field-the achievement of absolute uniformity of law

One member of the committee, Mr. George Logan, dissents from this view. His position was amplified in a mimeographed memorandum distributed to the house of delegates at the midwinter meeting.

act.

They are much broader objectives than revealed in corresponding portions of the 1926

AIR COMMERCE ACT OF 1926

Sec. 6, as enacted May 20, 1926, c. 334, 44 Stat. 572 (Title 49, U. S. C., sec. 176):

The Congress hereby declares that the Government of the United States has, to the exclusion of all foreign nations, complete sovereignty over the lands and waters of the United States, incduding the Canal Zone. Aircraft a part of the armed forces of any foreign nation shall not be navigated in the United States, including the Canal Zone, except in accordance with an authorization granted by the Secretary of State.

Sec. 6, as amended June 23, 1938, c. 601, sec. 1107 (i) (3), 52 Stat. 1028:

The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the airspace above the United States, including the airspace above all inland waters and the airspace above those portions of the adjacent marginal high seas, bays, and lakes over which by international law or treaty or convention the United States exercises national jurisdiction. Aircraft a part of the armed forces of any foreign nation shall not be navigated in the United States, including the Canal Zone, except in accordance with an authorization granted by the Secretary of State.

and regulations, and the announcement that

"the United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the airspace above the United States." [Italics supplied.]

In 1935, when the association endorsed the State regulatory act, the question, was very largely one of policy, namely: "Is it better for aviation, and can uniformity and safety of transportation be more expeditiously secured by promoting State legislation?" Now, in 1941, in addition to practical considerations, a serious legal question has arisen, namely: "May not State regulatory laws affecting air commerce be declared void as in conflict with the purposes of the Civil Aeronautics Act of 1938?"

That exclusive Federal jurisdiction is also in the public interest is indicated by a report filed with Congress pursuant to H. Res. 125.5 It recommends as a step toward increased safety for the traveling public that "the Government of the United States assumes jurisdiction of all navigable airspace over the United States, its Territories, and possessions."

To avoid promotion of any more State legislation where Congress has already practically covered the subject, and where the avowed congressional tendency is toward an increase of jurisdiction, seems to us a prudent position for this association to take.

Your committee, therefore, believes that recent decisions of the Supreme Court of the United States, as well as the practical reasons herein advanced, make it inadvisable for the association to promote the uniform State regulatory act. AIR LINE PILOTS ASSOCIATION,

Chicago, April 27, 1943.

Hon. CLARENCE F. LEA,
House of Representatives,

Washington, D. C.

DEAR CONGRESSMAN LEA: Reference is made to your letter of April 1.

I am glad you thought well enough of my comments relative to the interstate versus intrastate question and the need for Federal control of the airspaces of the United States, to have them inserted in the Congressional Record. Enclosed is an editorial which is written along the same lines that appeared in the March issue of the Air Line Pilot. If the record of your hearings on

H. R. 1012 are still open, it might be advantageous to insert this editorial.

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While it is true that the matter of States' rights versus Federal jurisdiction has always been a ticklish subject, it is a reasonable and common-sense deduction that there should be no conflict on this question relative to these rights respecting air-line transportation and air commerce generally.

Simultaneously with the arising of any question in Congress that deals even remotely with the subject of States' rights versus Federal jurisdiction, there is always the hue and cry from States' rights advocates that Congress is engaged in some sort of scheming attempt to take over or submerge the rights of the

House Document No. 933, Preliminary Report Investigating Air Accidents, filed July 10. 1941.

States and encroach upon their Constitution-given sovereignty and autonomy. It is quite true that States' rights must, insofar as is consistent with good government, be protected, but when States' rights and Federal jurisdiction are in conflict, common-sense principles must govern in the decisions made or the best interests of all the people of the whole Nation cannot be served. In other words, first, what is the nature of the problem which has injected a conflict as to whether the States shall govern or whether the Federal Government shall have the balance of power to govern and regulate? In this instance, we are talking about the fastest and most potential mode of travel in the world-air transportation-and air commerce generally. Whether the laws governing and regulating it should lean toward interstate or intrastate control-that is the question. When air transportation was first introduced on a regularly scheduled aircarrier basis during the twenties, 100 miles per hour was about the average speed, and now it is pushing 250 miles per hour, with the ever-moving finger of tomorrow pointing strongly at 300 and 400 miles per hour. Air commerce has emerged from piddling operations that occasionally crossed a State line to operations that now flash across many State lines on a single trip, and global intercontinental flying is fast becoming routine.

In other words, the problem we are dealing with is not intrastate, it is primarily interstate and intercontinental. Therein lies the common horse-sense reasoning why, in the best interests of all of the people of all the States, certain statutory and regulatory prerogatives must be vested in the Federal Government. This doesn't mean that the Federal Government regulatory agency for commercial flying and air transportation should be allowed to become bureaucratic, arbitrary, and be prone to indulge in perfunctory hearings and then glibly tell parties in interest when it decides a question in accordance with its own versions and, possibly, interests-"Sorry, but that is the way it is going to be. Period." The development of such Federal air dictatorship should be carefully guarded against by the Congress of the United States, the Members of which come from all of the States of the United States. This in itself is a potent safeguard against the development of Federal bureaucracies. In short, if the quasi-judicial prerogatives that Congress vests in the Federal regulatory agency for air are abused, such prerogatives and abuses can be checked quickly and effectively by Congress.

Let us further weigh and analyze in a rather homespun way the question of States' rights versus Federal jurisdiction in the regulating of commercial aviation: First, would it be better to vest the balance of power of regulation and control of commercial flying and air transportation with the States or with the Federal Government? The answer is obviously on the side of the Federal Government. Second, would it be worse to place the jurisdiction with the States or with the Federal Government? Obviously, the lesser of the two evils would be to place it with the Federal Government.

Brushing aside all of the pros and cons of this question for a moment and facing it squarely, neither the proponents nor the opponents could conscientiously and wholeheartedly deny that nothing could be more deadly and more crippling to the best interests of the Nation's aviation than to have a separate set of laws and regulations to govern air commerce and air transportation in each of the 48 States, all of which would, very likely, be different. Stop and think-48 separate sets of laws are regulations governing what will soon be 300 to 400 miles per hour travel. The business is already strapped and laced, and, to use a rather common term, "hog-tied" by regulations, mandates, limitations, and stipulations, and if to all this are added 48 separate sets of intrastate laws and regulations, the air-line pilots frankly despair of the future of the greatest of all modes of fast travel.

In Congressman Clarence F. Lea's bill, H. R. 1012, there appears section 802, which reads:

"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 commerce is conducted throughout the United States."

The air-line pilots are not prone to quibble about the wordage of laws, but they are thoroughly convinced that the longer this interstate versus Federal civil air commerce regulatory jurisdiction question remains open, the more difficult its solving will become.

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The House Interstate and Foreign Commerce Committee, headed by veteran transportation legislator, Clarence F. Lea, of California, and its Aviation Subcommittee, of which veteran lawmaker, A. L. Bulwinkle, of North Carolina, is chairman, and in fact, all the members of these committees, deserve much credit for attacking a most difficult and knotty problem that has long been before the Nation defying a solution.

All persons and groups who have the best interests of air commerce and air transportation at heart should communicate to Representatives Lea and Bulwinkle and, in fact, to all the members of the House Interstate and Foreign Commerce Committee in Washington, their feelings in an endorsement of section 802 (a) in H. R. 1012 as being the proper legislative trend for air commerce and the Nation's aviation generally. It can always be assumed that the State rights advocates are very much on the job, many of whom are perfectly sincere, but there are also the politically tinged State rights magpies and it is the latter which shriek the loudest. Let's not lose this fight by reason of nonappearance, nonparticipation, disinterest, and inaction-and to be brutally brief-too little, too late.

This is a critical situation on which all must take a broad-gage common-sense view and realize that if a wrong trend is pursued it will lead to chaos. Persons who stop to think, not only of the detrimental effect but also the scope of such effect to our Nation's aviation both nationally and internationally resulting from 48 separate State statutory and regulatory set-ups, all in conflict, should say with one voice, unmistakably clear, "Let's not let it happen here."-David L. Behncke.

AERONAUTICAL CHAMBER OF COMMERCE OF AMERICA, INC.,

The Honorable CLARENCE F. LEA,

Chairman, Committee on Interstate and Foreign Commerce,

April 16, 1943.

House of Representatives, Washington, D. C.

DEAR MR. LEA: The Aeronautical Chamber of Commerce of America, Inc., representing approximately 90 percent of the aircraft-manufacturing industry, is keenly interested in H. R. 1012, as reported by the House Committee on Interstate and Foreign Commerce. We desire to submit the following comments pertaining to this bill, for we feel that, generally speaking, it is very constructive and should aid in the rapid development of civil aviation.

While any measure for the sound promotion and development of civil aeronautics is of interest to the aircraft manufacturers, a feature of H. R. 1012 which is of particular interest is that relating to exclusive Federal jurisdiction in regard to the regulation of air navigation and air commerce.

If the principle of exclusive Federal regulation is adopted, the sound development of civil aviation will have been very substantially advanced. As aircraft manufacturers we can appreciate more fully, perhaps, than others how confusing and retarding it would be were the aircraft industry to be faced in the future with 49 regulatory agencies. During the present war the aircraft manufacturers have been compelled, necessarily, to manufacture aircraft to the differing specifications and requirements of different countries among the United Nations. This is, of course, a most difficult undertaking. In fact, in the interest of efficiency, a manufacturer simply could not turn out from his plant aircraft meeting these differing specifications and requirements and it has been necessary that the manufacturers turn over to other people the modification of their aircraft, after they are manufactured, to meet the conflicting desires of the various sovereignties involved under the United Nations.

Such a system is necessary in wartime, but it would be a tragedy were our aircraft-manufacturing industry to encounter, even to a minor degree, any such situation in our own internal peacetime economy after the war. Yet, if there were to be 49 different agencies of government regulating air navigation and air commerce it would be inevitable that, in the manufacture of aircraft, the desires and the requirements of those different agencies of government would have to be taken into account. The resulting confusion would cause waste, inefficiency, and needless expense and would unquestionably impair the ability of this Nation, in the post-war period, to maintain its position of leadership in competition with other nations not faced with similar internal jurisdictional differences.

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