The determination of this carrier's status was incidental to the proceeding, and the Commission observed that the evidence presented upon the commoncarrier contention was not supported by testimony other than the "self-serving" statement of its own witness. Since this line had filed no appearance in the proceeding, its evidence was regarded as gratuitous in character. The holding, in effect, was that on the state of the record the evidence was conflicting and insufficient to warrant the determination of its carrier status, but it was observed that specified towage performed involved charges substantially lower than charges applied on grain for other shippers and was "contract carriage."

It is submitted that if the inquiry were more germane to the issues the Commission in following its decisions on motor carrier cases might just as readily have held that no essential element of specialization was shown, which, coupled with the holding out to the general public, constituted the line a common carrier. From this case it would appear that either the Commission is ignoring its motor cases in connection with shipping or, unless actually being inconsistent therewith, has already indicated that the interpretation of the definitions in connection with motor carriers may not suit the purposes and regulation of the shipping industry.

Consolidated insurance experience of the scheduled air lines as reported1 by the 3 groups of aviation insurance underwriters for the years 1934–41

1 The data was supplied by each underwriter for his individual group at the request of the Civil Aeronautics Board. The figures for the 3 groups were consolidated by the Board's staff.

2 Aero Insurance Underwriters, 111 John St., New York City; Associated Aviation Underwriters, Inc., 90 John St., New York City; United States Aviation Underwriters, Inc., 80 John St., New York City. 3 Includes aircraft liability, airport liability, miscellaneous liability, workmens' compensation, and personal accident.

OPINION OF CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT IN ROSENHAU v. UNITED STATES (CERTIORARI DENIED BY U. S. SUPREME COURT ON APRIL 19, 1943)

Opinion

[November 16, 1942]

Zar E. Hayes (Grover. A. Giles and Calvin L. Rampton were with him on the brief) for Appellant.

John S. Boyden (Dan B. Shields, United States Attorney, and Scott M. Matheson, Assistant United States Attorney, were with him on the brief) for Appellee. Before Phillips, Huxman, and Murrah, Circuit Judges.

Murrah, Circuit Judge, delivered the opinion of the court.

The appellant appeals from a judgment of the District Court of Utah assessing civil penalties, imposed by Section 901 of the Civil Aeronautics Act of 1938 (52 Stat. 977, 49 U. S. C. A. 401 et seq.) for violations of Section 610 (a) (1) of the Act (49 U. S. C. A. 560).1

The United States, through its attorney for the District of Utah, by civil complaint, containing four causes of action, charged that the appellant, on four separate dates, operated a civil aircraft in air commerce, as defined by Section 1 (3) of the Act (40 U. S. C. A. 401 (3)),2 within a designated civil airway, as defined by Section 1 (16) of the Act (49 U. S. C. A. 401 (16), without having currently in effect a certificate of airworthiness as required by Section 610 (a) (1).

(a) It shall be unlawful—

"(1) For any person to operate in air commerce any civil aircraft for which there is not currently in effect an airworthiness certificate, or in violation of the terms of any such certificate; * *

86429-43--10

The appellant answered, admitting the designation and establishment of the airway, under the Civil Aeronautics Act, across the state of Utah, as an integral part of interstate and foreign air commerce. He further admitted that on the dates specified he operated a civil aircraft in the designated airway without having currently in effect an airworthiness certificate for the said aircraft from the Federal authority, as authorized by Section 603 (c) of the Act (49 U. S. C. A. 553), but alleged that there was currently in effect, on the specified dates, an airworthiness certificate on the said aircraft issued by the Utah State Aeronautics Commission, and that his operations of the aircraft, although within the federally designated airway, were wholly within the state of Utah; were not a part of interstate or foreign air commerce, and did not remotely affect interstate commerce. He alleged that since his operations were wholly intrastate, and did not remotely affect interstate air commerce, the asserted control over the admitted operations was not within the interstate commerce powers of the Congress, and constituted attempted exercise of a power reserved to the sovereign states under the 10th Amendment to the Constitution.

The court sustained the United States motion for judgment on the pleadings and the judgment of the court is based upon the issues as cast by the pleadings, of which the appellant complains, contending the motion admitted the truth of his allegations that on the dates mentioned there was currently in effect a certificate of airworthiness issued by the Utah State Aeronautics Commission which met the requirements of the Federal Act, and further admitted the truth of his affirmative defense to the effect that insofar as the Act had application to his intrastate operations it is unconstitutional. The motion for judgment on the pleadings admits all facts well pleaded, but it does not admit conclusions of law. The Government therefore admits the issuance of a certificate of airworthiness on the aircraft by the Utah State Aeronautics Commission, but it does not admit the legal conclusion that such a certificate met the requirements of the Civil Aeronautics Act, supra, requiring a certificate of airworthiness. Neither does the motion admit the affirmative defense of the asserted unconstitutionality of the Act as applied to the admitted intrastate operations.

We think the pleadings as thus cast present clearly and concisely the bare legal question whether the Congress may in the exercise of its commerce powers, by its definition of interstate air commerce, include within its scope "any operation or navigation of aircraft within the limits of any civil airway," and thereby forbid the intrastate operation of a civil aircraft within a federally designated airway, unless there is currently in effect an airworthiness certificate issued by the duly constituted federal authority, and whether the state certificate of airworthiness meets the requirements of the Federal Act. No further facts are essential to a decision on this question, and the court correctly based its decision on the facts admitted by the pleadings.

(See

The Civil Aeronautics Act, supra, was enacted as advanced legislation in recognition of rapidly growing air commerce and was comprehensively designed to promote civil aeronautics, and to that end develop and secure maximum aeronautical safety. Its broad purposes are manifest by the text of the Act. Section 2 of the Act.) The Act created a civil aeronautics authority to be composed of expert personnel, with powers to effectuate the full purposes of the Act. To that end the authority was empowered to designate and establish civil airways, to regulate other airways established with its approval, and to install or supervise the installation of equipment purposed to attain the maximum safety. It authorized the authority not only to establish and to regulate airways, but to regulate and prescribe the mechanical standards for aircraft to be flown within the designated airways. The Act, also, provided for the registration of all aircraft wherever and however used, and provided that no person should operate an aircraft as an airman without a certificate of authority, or that no person should operate any civil aircraft without having currently in effect an airworthiness certificate, or in violation of the terms of such

2 "Air commerce' means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign commerce.'

3" Civil airway' means à path through the navigable air space of the United States, identified by an area on the surface of the earth, designated or approved by the Administrator of Civil Aeronautics as suitable for interstate. overseas, or foreign air commerce."

4 "The registered owner of any aircraft may file with the Administrator of Civil Aeronautics an application for an airworthiness certificate for such aircraft. If the Administrator of Civil Aeronautics finds that the aircraft conforms to the type certificate therefor, and, after inspection, that the aircraft is in condition for safe operation, it shall issue an airworthiness certificate. * *

certificate. It provided, further, that any registered owner of any aircraft could apply for a certificate of airworthiness, as required by the Act, and for the issuance of the certificate after inspection and determination of airworthiness, and made unlawful noncompliance with requirements of the Act. The Act does not textually recognize a state certificate of airworthiness as a compliance with its requirements, and we cannot presume a congressional intent to do so.

Congressional regulation of interstate air commerce in the interest of safety and efficiency is new and modern, but the law applicable thereto is of another generation. To sustain the broad and plenary power of the Congress to regulate interstate air commerce in the interest of safety and efficiency, we need but recur to the prophetic pronouncement of the Supreme Court of the United States, long before the skies were considered aeronautical highways, when it said: "Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same today as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so is it with the grant to the national government of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates today upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop." In Re Debs, Petitioner, 158 U. S. 564, 595.

It cannot be doubted that if the Federal Act is devoted to the promotion of safety and efficiency in interstate commerce, whether it be the stagecoach, sail boat, steamship, railroad train, motortruck, or airplane, if the Act bears some reasonable and rational relationship to the subject over which it has assumed to act, the power is supreme and may not be denied, although it may include within its scope activities which are intrastate in character. "It is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce." Southern Railway Company v. United States, 222 U. S. 20, 27. See, also, Texas & Pacific Railway Company v. Rigsby, 241 U. S. 33, and Napier v. Atlantic Coast Line Railroad Company, 272 U. S. 605.

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 airworthiness certificate, evidences 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. 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.

The judgment is AFFIRMED.

RECOMMENDATION OF LOS ANGELES CHAMBER OF COMMERCE IN SUPPORT OF H. R. 1012

Committee: Aviation, T. C. Coleman, Chairman.

Subject: Civil aeronautics bill.

Status:

RECOMMENDATIONS

MAY 7, 1943.

That the Los Angeles Chamber of Commerce support in principle the civil aeronautics bill known as H. R. 1012 with the following qualifications:

(1) While endorsing the economic regulation of common and contract carriers It is believed that nonscheduled charter operations, vocational, and private flying should not be subjected to economic regulation.

(2) That the powers and duties of the Administrator within the Civil Aeronautics Authority should be primarily administrative and that the Board itself should retain responsibility for the establishment of policy and adherence thereto, and should itself exercise such legislation and semijudicial functions as may be provided under the act.

Discussion. The Los Angeles Chamber of Commerce played a particularly active part in helping set up the present laws under which aviation is functioning. In the summer of 1934 a very comprehensive report upon needed legislation covering air transportation, manufacturing, airports, and national defense was prepared under the direction of Oscar A. Trippet, chairman of a joint committee composed of the aviation committees of the Los Angeles Chamber of Commerce, the Los Angeles Junior Chamber of Commerce and the California State Chamber of Commerce.

The Civil Aeronautics Act of 1938 incorporated many of the suggestions made in this study.

H. R. 1012 by Congressman Lea for the reorganization of the Civil Aeronautics Act of 1938 was introduced on January 11, 1943.

A series of amendments was introduced and made a part of the bill on February 13, 1943.

Extract from Report No. 124, House of Representatives:

"The principal object of this bill is to aid and encourage the development of our civil aviation. The method followed for accomplishing this purpose is by amendment to the Civil Aeronautics Act of 1938.

"Primarily, this bill extends the provisions of the Civil Aeronautics Act of 1938, based upon experience since that time and the probable air navigation developments that now confront the country."

"PROVISIONS OF BILL

"Among other things, this bill has provisions as follows:

"1. It proposes an investigation and report by the Postmaster General and also by the Civil Aeronautics Board as to the feasibility of carrying all classes of mail by air when delivery would thereby be speeded.

"2. It calls for an investigation and report by the Civil Aeronautics Board furnishing information with suggested plans for meeting post-war developments in civil aviation.

"3. It extends and further defines Federal jurisdiction in our navigable air space.

"4. It restates and emphasizes our national policy for the encouragement and development of civil aviation. The expansion of our air commerce in the last 5 years has been made possible under this policy.

"5. It proposes a long-range program under the direction of the Administrator of Civil Aeronautics for the development of air navigation facilities including airports.

"6. It provides for a broad program of aviation training and education.

"7. It provides a plan for the removal of hazards to air navigation on and in the vicinity of airports.

"8. It contains stricter prohibitions against the issuance of passes in air transportation.

"9. It brings contract carriers by air under the regulatory provisions of the Civil Aeronautics Act.

"10. It has provisions looking toward the removal of interstate trade barriers to air commerce.

"11. It provides for strengthening and expanding the Weather Bureau service in aid of our air navigation, both domestic and international.

"12. It gives the officer in command of an aircraft, or other authorized employees, adequate power to assure safety and prevent disorderly conduct.

"13. It calls for an investigation and report by the Civil Aeronautics Board as to matters affecting aviation insurance and reinsurance.

"14. It makes clear that all employees of air carriers are subject to the Railway Labor Act."

Most of the objections that have been raised against the bill have been developed from States which have aeronautical commissions who feared the States would be deprived of supervision and control of aircraft operating within the State.

The principle of centering all control of flying operations in the Federal Government is generally accepted. To divide authority over aviation between the Federal Government and the several States is uneconomic, unsound, and would handicap the development and use of the airplane. The interjection of the States' rights controversy has beclouded the main issues of the civil aeronautics bill.

This civil aeronautics bill is a comprehensive measure covering all phases of aviation. In general, it is a modernization of the Civil Aeronautics Act of 1938.

LOS ANGELES, CALIF., April 23, 1943.

CONGRESSMAN CLARENCE F. LEA,

Chairman Interstate and Foreign Commerce Committee,

The Air Cargo Research Association's executive committee has studied the Lea-Bailey bill (H. R. 1012) and believe that its provisions are thorough and will modernize our civil aviation law to the extent that it will help prepare the aviation industry for its expected extensive post-war expansion. There are unmistakable signs that some transportation interests are encouraging strong opposition to the bill in the hope of placing obstacles in the way of aviation development. If these opposing movements should succeed we feel that not only aviation will be seriously crippled but that the probable post-war unemployment situation will be intensified. In our opinion one of the most important pieces of this proposed legislation is the provision which will extend Federal regulation to all air navigation and commerce thus eliminating duplicating and conflicting regulations by the individual State. It will be appreciated if you will pass these views on to members of your committee who are giving consideration to this far-reaching piece of legislation.