Petition for Writ of Certiorari — Chicago & Southern Air Lines, Inc. v. Waterman SS Corp.

Supreme Court brief1948

Ask Donna

What actually matters in this document.

Text

ae . PETITION FOR WRIT OF CERTIORARI. TO

Ca. CRIED STATES CIBCUTT COURT OF APPEALS

| R. EMMETT KERRIGAN, _

Attorney for Petitioner.

- Of Counsel: E.

+ DEUTSCH, KERRIGAN & STILES,

2 yr

J, S. VERNER:

Fat) a %

INTHE 7

SUPREME COURT OF THE UNITED. STATES ,

Re oh deta Term; =

Whe cia:

CHICAGO AND SOUTHERN AIR. LINES, INC.,.

j ; Potitionsr,

WATERMAN ’ STEAMSHIP CORPORATION,

ne : a

a »

‘ ee

: PETITION’ FOR writ OF | CERTIORARI TO THE

‘UNITED STATES CIRCUIT COURT OF APPEALS —

FOR THE FIFTH CIRCUFF.

To the Honorable, Chief Justice and Associate Justices of

the Supreme Court of the United States:

Now comes Chicago and Southern Air Lines, Inc., a.

Delaware ‘corporation, -and respectfully prays that a

writ of certiorari be issued to. review the decree of the

United States Circuit Court of Appeals for the Fifth Circuit,

entered February 14, 1947, denying petitioner’s motion to

dismiss the petition for review filed by Waterman Steam-

‘ship corporation, ‘réspondent. “nn

1 Also referred to herein as Waterman.

| 2 .

Pitas . Z 4

OPINION BELOW.

The opinion of the court. below is reported in-#90°F(2)

——$—— ne

828.

oe ee:

et ee

’ JURISDICTION.

‘Jurisdiction is invoked under Section 240(a) of the

Judicial Code as amended by the ‘Act of February 13,

1925, c. 229; sec. 1, (28 U. S. C. 347(a), 43 Stat- :

\—dearee of the Tower cc court was seria. 14, 1947. .

~~ There was no application for a. a.

* 6) be

gana PRESENTED.

_ The first question presented ‘by this petition is whether _.

a United States Circuit Court of Appeals has jurisdiction —

' to yh a of the Civil Aeronautics Board, ap-

. _ proved Vv ident of the United ‘States, under Sec-

‘\, ‘tion, 801 of. the Civil Aeronautics Act of 1938,as amended? —

\ granting a certificate of public convenience and necessity

Yor overseas and foreign air a

‘

7: ° ®

‘A still further question is whathier a petition to review :

a: decision. of the Civil Aeronautics Board,’ filed under ~

Sectigin 1006 ofthe Acts must be filed within sixty days 3

after the entry. of the sue, when no stay thereof is

obtained. © Seer

2 49 USC 601; June. 23, 1938, c. 601, 801, 52 Stat. 1014; Reorg.:

~"™ Plan No. Ili, sec. 7, eff. June 80, 1940, B Fed. Reg. 2109, $4 Stax,

1238. The Civil Aeronautics ‘Act, as amended, is referred to here-

in simply as the Act.

ie 8 Referred to herein simply as the Board.

; #49 USC 646, 54 Stat. 1235. See note 12, infra.

—,

SUMMARY STATEMENT. ac eee

____1n.1040-Watermant Air Line, Inc, a subsidiary of re-_

———

“@

spondent, filed an application with the Board, under

. Section 401 of the Act,® for a a certificate’ of public con--

venience and necessity-to engage in air transportation be- -

tween the United States and Puerto Rico: Thereafter,

_ respondent itself was * substituted as the applicant.

. Meanwhile i i

-applicatio. ‘seeking a certifjcate of public convenience and.

necessity tQ4 engage in air transportation between New

Orleans and\San Juan, (a) via Cuba, Haiti, and,the Do-

minican Rephbblic, and (b) via Tampa, Miami, Cuba, Haiti.

and the Dominican Republic. Petitioner herein also filed

applications for other toutes in: the Caribbean and Central :

American areas. The applications filed-on behalf of peti-

tioner and of responac it were consolidated with many

others in a proceeding referred to as “Additional merece ae

to Latin America”.*

Hearings on the applications were held before examiners

of the Board. Briefs were filed with the examiners, and - |

_ they submitted their report on March 5, 1945, _ Serving

copies on all parties. Exceptions and briefs: were filed by |

all parties, who were’-then allowed to. present arguments

- before the Board from April 30 to “May 5, 1945.

Finally, on May 17, 1946, the ‘Board rendered an opinion |

. in said proceeding.” Included in that- ‘opinion was the de:

_ Cision that ‘petitioner should be issued a certificate of - |

public: convenience and necessity for foreign and overseas”

air transportation of persons, property and mail “between =

849 USC 481, 52 Stat. 987. ~ Saket

et 525

of the Civil Aeronauties Board.

TR. p. 118, et rat

—~ and (b) beyond Havana, Cuba, the intermediate points —

cao, Netherlands West Indies, arid the terminal poi

! Cand Venezuela.” * At :the same. time, the

‘denied. the applications of respondent and others |

i respdbilent’ previous motion’ of May 6, 1946. hich had eS

a requested the Board. to re-open . the proceedi, fés to receive

: and to deny the -other applications. On May 24, 1946, a -

“copy: of the. Board’s decision as approved by the Président"

‘certificate was issued to petitioner. -

- hearing. The rules of the Board, which were promulgated - -

: 235. . ‘

10. See 285.11 of the Rules of Practice of the: Civil Aeronautics Board’:

." s

ee >

we oie baci points, ictus and Howes

‘Tex., ‘the ‘intermediate point Havana, Cuba, and (a) be-

_-yond Havana, Cuba, the intermediate points .Camaguey, ©

. Cuba,. Port-au-Prince, ‘Haiti; Ciudad Trujillo, Dominican ff

~_ Republic, ‘and the terminal point San: Juan,, Puertp: Rico, . 3 J é

Kingston, Jamaica, Aruba, Netherlands West Indies, Cura-.

further evidence and for. re-argument, . or the eo. 3

New Orleans-San Juan route. LSE ae 23s

. The Board’s decision. was veteoned to the President-of Ze .

the ‘United States in accordance with the provisions of

Section 801 of the Act, ® and én May 22, 1946, the President.

approved the decision -of the Board to certificaté petitioner oe

was served ‘upon Waterman and-on the ‘same day the = ae

_ On June 24, 1946, Waterman filed a ~ request for ‘re- ~

pone the authority of Section 1005 baal the Act,® prone LS

that: ="

Pas

849 USC 601, 52 Stat. 1014,

*49 USC 645; June 23, 1938, c. 601, sec, 1008, 52 Stat. 1028, Reorg. .

be No. IV, sec. 7, eff. June 30, 1940, 5 Fed. Reg. 242 , 54 Stat. -

under Title IV and Section 1002 (d) to 1) of the Civil Aero-

' nautics = of 1938 as amended.

: 7 Wee

cin saesha tan sibel ideas ake:

</ Smeal ew

y, ee ee ee ere ks

effective date of the final order sought to be

modified or vacated by. a unless spe-

~ dally ‘0. ordered by. the 1

No stay of ‘the Board's opinion on May 17, ‘1946 was

requested. by Waterman and none was ordered by the

Board. Moreover; on ‘July 12, 1946, less than sixty: days

after’ the rendition and the service of the pinion of the

Board, the ‘Board. denied the spokeation for’ a rehearing.

oo Thereafter, on Septetaber 6, 1946, considerably more

. than sixty days: after the rendition and service. of the. :

Board’s opinion, Waterman filed a petition in the court ei

below, ne for a review of . the foregoing action. =

‘the Board. | ee ; hss

— After the erutation of sity days, a ‘petition may te

ss "filed in the Circuit Court of Appéals only upon leave of |

- that court after a showing of reasonable grounds for. fail-

_ure to file the petition theretofore." No such showing was,

made’ by Waterman. and the court was. ‘not called upon

_ ‘and did not make such: a finding in that regard.

eager ©.

‘The Board filed a: motion to “dismiss the petition to:

review: for lack of jurisdiction. ‘After being granted leave :

by. the court below to intervene, petitioner herein also

: moved to dismiss Waterman’s Petition to review. |

Petitioner’ s motion to dismiss’ was ae in . part,

on. the ground that the Circuit Court of Appeals lacked

be: Sec. 1006 of the ‘Si For comple citation see ie note 12.

ese, WT

ay / j -

d Fo bec a2

- y / .

; . $ J . .

’ . . AY, --

: Pet Smee ° y

7 0

‘jute Sesnmhash i: nme signi Wis “ec Baal

dent,-of a certificate of public convenience and necessity, ie.

~ for overseas and foreign transportation. In support of fs

er position, petitioner ° ‘showed, among. other things:

7 xe ‘The decisio’: of the Board. was-pot within

~ ° ‘the jurisdiction to review conferred upon the —

» \eourt below by Section”1006(a) of the Act,” since

that section does not and cannot operate to confer -

‘.upon. that court jurisdiction to.review the issuance

or denial of certificates, the issuance or denial of

-which is ‘subject to the approval ‘of the President

' of the United States under Section ‘801 of the

Act. ie ‘ Sees

‘mimi.

advisory one subject ‘to| the approval or disap-

| provai of the President the United States and’ _ yf

"was inefféctive ‘without’ the President's approval: ne

‘+S The decision of,the Board was in effect an_

order. of the President of the United States:. No S

: jurisdiction spatints such an order ofthe Presi- - *-

1249 USC 646, June 23, 1938, ¢. 601, 1006, 52 Stat. 1024,. Reorg.

Plan No. IV, sec: 7, eff. June 30, 1940, 5 Fed. Reg. 2421, 54 ——

1235. The pertinent, provisions ‘of: this section are: “Any

affirmative no n mgpned — by | Be Be ae | necro ‘chapter

except any order -in respect of any r subject to

‘the approval of the President as provided in €01 of. this

chapter, shall be subject ‘to review by the circuit court of appeals _

of the United States . . . upon petition filed within sixty days

"after the entry. of such order, by any person disclosing a

‘stantial interest in such order. After the expiration of said sixty .

a may be filed only by leave of court upon a showing

’ of reasonab Peabo for failusp to file the petition: theretofore.” .

1849 USC seé. 601, 7a ness & eon of this section are: “The

issuance, denial... and the terms., . ., contained in any cer-

tificate authorizing an air’carrier. to e in overseas or foreign

air transportation, or air transportation ee dlen places in the same .

Territory or possession, or any permit issuable to any foreign air

carrier underssection 482, shall be subject ‘to — approval of the i

' President. . Copies of all ap ote in respect of such certificates ;

and permits shall be transmitted to the President hy the Civil Aero-

nautics Boerd before hearing thereon, and all decisions thereon by ~

the Civil Aeronautics shall be submitted to the- President

before publication thereof. gi

, «the cout: below ty: chasen ct tans yoewaag ;

‘ conferred upon the President by Section’ 801 of © -

‘the Act," subjecting to his ultimate approval the

issuance or denial of the certificate in. question,

is without power to render a judgment with final- °

: ity and conclusiveness, and hence the petition for’

-Feview presented no case.or controversy tp which

_ the jadicial power extends. —

5.. The issuance of the ‘certificate of public

’ _ convenienge and necessity to petitioner rested

solely within the discretion of the President of the =

United States under Section 801 of the ‘Act, and g

since the action of the President was not required

.. *t be predicated on evidenee produced at the hear-

- ‘jng before the Board, respondent Waterman did

“not present, cannot present, and cannot have prée-

sented, a record susceptible of review, and, ac- |

- cordingly, theré att: 1 end een Be ee eee

"the court below. for review..

_ P&titioner’s, "iatioks to: dismiss was also predicated on.

the following ground:

__wieerman’s s petition for review filed-o on histine

~ beh 6, 1946, was not within ‘the 60-day. period al-

lowed under Section 1006 of the Act.¥

ye hearing, ‘the court babies pean its ‘decision -

denying the motions to disffiss. ‘In answering in the

‘affirmative the first question above. stated the court: in 3 .

the course. of its opinion | said:

“We are aware that this quatiie: was decided

otherwise in Pan-American. Airways. Company vs.

Civil Aeronautics Rend, 121 Fed. ast 810.”

i¢ Note 13, supra. ;

18 weet 12, supfa. —

_° be, settled by this Court.

"REASONS FOR GRANTING THE PEITTION.

L "The decion ofthe Giccit Court ot Appeals fr, the

"Fitts Cleese te dinectly tn: conflict: with ‘the:dlesnaan oc

' the samie question rendered by the Circuit Court of Ap-

a peals f__ the Second Circuit in Pan-American Airways 2 v8.

~. Civil Aeronautics Board, 121 F. (ay 810,"* and this conflict .

os should be resolve! by this Court,“ | es

gf The decision ‘ot ‘the court below invoiide important _

questions of federal law, which have not been, but ‘should -

16In the Pan-American case ‘the court said:

“It seems clear that in approving

: Board, the ultimate’ arbiter: va. George 8.

- Company, 310 U. S. 371, 60 8S. 944, 84.L. ed. a

“If the President has

SPP of a certificate authorizing a

carrier to in foreign air transportation and we should at-

tempt to review the order au g the issuance of the certifi- —

cate, we would be placed in bat pgsition where we might be obliged’

to reverse a tribunal w t action the ng Rhee would

>see ede. rove. - His sreeping: -are “gr apa by the’ .

Section ere not only approve or -—

‘ae aenbpees of a certificate rho trig air Ba, mg even .

to et aa or wd one of the of such “certificate by the ©

Mm «

gress intended to permit a review of the action of the Board..in . ;

. here to a

‘issuance of the pn OB nat is so dependent u

-- testing in the Executive. pe t. it

—— ~ Section 1006(a). Fe —_

. eo

»{ * : Bie eel sd \ S a,

r . ene | om : bi é

‘sis eae pane decided federal uestions inh.

way probaly im comet withthe apple ple |

“of this Court. :

4. ‘mg petton sald be eran at he jones

this proceedirig: ‘because: eae te

"> (q) The decisioni of the court below is final-ins .

‘sofar as the question of. jurisdiction is pita

_ George A. Fuller Co, vs. Otis Elevator, aug 0. ae cat

+ 489; Bx Parte Querin, 317 U. S. 1.

‘ (b) - ae cs tented ty elk coe ee

tiorari a similar question-of jurisdiction in a simi- Soe

’ Jar proceéding’ before a decision on the merits. _

‘Federal Power Commission ‘vs.. rc oe. + ee es aoe

Saeetee 307 U. S. 156. : | Sy rs co eae es

* (ce). The judgment: below ‘havelves. an ce : ee

“$undamental to the further-conduct of the case”. + OS

- United States vs. General ‘Motors. Corporation, a

323 U. S. 373, 377; Land ‘ys. Dollar, No. 207, Octo- ee

ber Term, 1946, decided April 7, 1947. | ee:

1: as petitioner begun opera-

< my under th certificate of “i convenience oa

: d d desires to.

e its o tions thereunder, a speedy. de- ©.

Hes terminatioi* of titioner’s right is gsr and *

-. . “equitable to (pr vent’ great Sipancial Toss « ‘and: ~

oo ~ 4 damage... 0 *

\¢

mes oa (f) “No pi seu wind wi dann it- ee *

“ting the court below’ tp conduct exterjsive he roe -

’- ings involving the printing and study%ef a-vdil- “So >

eee ‘uminous-record if’ that court. has no jurisdietion

& .

" 5 10 7 ve . 2 oe . )

+ % af i ye

+ a ~

~ Wherefore, petitioner reabiiliahely prays that this ‘Peti- :

|, tien for a writ of certiorari be. granted, and that finally

| the decree of the lower court be reversed and petitioner’s.

motion . to dismiss for lack of: jurisdiction - be’ sustained;

and for ‘such further relief as: to this Honorable Coprt my

may seem ‘Proper. ;

® .

’ .

Respectfully wibiniited:

a —R EMMETT STT KERRIGAN,:

: “wre gs Petitioner.

Of Counsel: ; ae

DEUTSCH, KERRIGAN & STILES,

pe he MAURER,

J. S. VERNER. - ae

‘New Orleans, Se iahine. Sere ae ee Re ee

April 30, 1947. ane UT Ate Ase tam

eae § ’ . ee oe a eG , E ;

a ¢. : Pik : ae

FILE cory .

Olle ~ Suprsine Qowrt, Us &:

FILaD

N OV 3 io

CPARLES LscrE chiowury |

. SLEeax “

_ Supreme Court of the. ius d.

‘ ; : x ‘

OCTOBER. TERM, 1947; AICS te

‘

— :

ie mete. ee es o

“. ? : 4 ~ Sh wr

- . al « * A .

"-: WATERMAN STEAMSHIP CORPORATION,

* egtamens ~ t.

| BRIER IN BEHALF OF CHICAGO AND SOUTHERN AIR

_ LINES, INC., ON. WRIT OF CERTIORARI TO. THE

_ UNITED STATES CIRCUFT COURT OF APPEALS

FOR THE 1 FIFTH CIRCUIT. :

e »

tab Ee | R> EMMETT KERRIGAN,

/ “+R. S. MAURER,

Py NS Aftownages: for Chicago and :

ce eee °. Southern Air Lines,’Inc.

Of Counsel:

MARIAN MAYER,

. DEUTSCH, KERRIGAN & STILES. Beas oe:

rs 5 ay a,

, e 4 ba

* »4 be «

+ e

* . ‘ . ‘ .

’ ° 4

je < ;

at ;

’

TABLE OF CONTENTS. .

eer | : PAGF

' OPINION BELOW 62.2.2... eaekabeakas® adnas po 1

NON 6 esi 53 ince ns cine sh sancsonpys os 2

STATEMENT OF FACTS | 5 dauielew sitlea hes a lich 2

‘STATUTORY PROVISIONS INVOLVED Mkewinad 7

SPECIFICATION OF ERRORS ..........:....... 13

ARGUMENT .........0.......00. aE ee 14

I. A. The problems involved in foreign air trans-

‘do with foreign polity and national defense 14

B. The authority of ‘the

, existed prior.to

“the Constitution 21

Cc. The action of the. :

judicial restraint ....-................00-. me:

'D. Review of the order involving foreign and .

1 tiny a ag emcrk semper

' volves review of the President’s action . 33

E. Review of the Board’s decision presents ae

case or controversy .........5cceceeee. 36

_- F. Section 1006(a) must be interpreted to pre eee

| elude review of orders for foreign and ae

overseas transportation Adadedecesheeaee 40.

fo a ee ee

MEIN. bh nce cocidcccscescanescesccce 43

GUI 5 Gaudi cudsbecdcciscadscdecencececs 47

TABLE OF AUTHORITIES. .

pectin

Cases. i ke es

Airways (Atlantic) Limited, 2 CAB 181 ............ a entae

Ex parte Bakelite Corp.,'279 US 438, 49 S. Ct. 411,

J 73 L. ed. 789 (TOS i ee se 36

Baltimore & Ohio R. R.« Co. v. Interstate Commerce

: Commission, 215 U. S. 216, het S. Ct. 86, ‘54 i

OR Fe hbk oh ee ae dno Secseseiass 37

. Branifé v. Civil Aeronautics Board, 147 Fd. (CCA oid ee

Brae SE kk he aa ekb 00 ks weed 45,46 —

Dakota: Cent. Telephone Co. et al. v. State of South

'_” . Dakota, 250 US 163, 39 S. Ct. oot, 6S L. ed.

Ree Be ay Semen yeaa "99 |

. District of Columbia v. Eslin, 183 ‘US 62, (22:'S.. Ct. .

Ry ae Ge Gs CA) i ick Chee ek cds 37 |

Thre, ex dem. Clark, et al. v. ‘Braden,. 16 How. 635,

ee, Be a TE CU) es es

Durand v. Hollins, 8 Fed. Cas. #4186 (1860) eee 33

Federal Power Commission v. Metropolitan Edison

Co., et al, 304 US 375, 58 S. Ct. 963, 82 L, ed.

1408 CNR AAS itr Oise: 41°

Federal Power Commission v. ‘Pacific Power & Light

> oe ns 307 US 156, 59-5. iaael 766, 83 L. ed. 1180.

Ferreira’s Case, 13 How. 40, 14 L. ed. 42 (1852) ....37, 38 %

Fok Young Yo v. United States, 185 US 296, 22 S. :

: .Ct. 686, 46. L.. ed. 917 (1902) NAAT ly pas Stans aes:

Foster and Elam v. nen 2 Pet. 253, 7 L. ed. 415.

‘ CR ici igades us cc von eawatmasiss 29

_ Gordon v. United States, 2 Wall. 561, 17.L. ed. ‘921 ea

; (1865), 117 US 697, appendix Pe Cet ea 37, 38

Guaranty Trust Co. of,N. Y. v. United States, 304 US -

126, 58 S. Ct: 785, 82. L. ed: 1224 (1928) . :

TABLE OF AUTHORITIES —(Continued) oD aes

~Cases— (Continued) aks

PAGE

iii: Casa; 2 Dall. 409, 1 [i ed. 436 (1792), is. St

Jones v. United States, 137 US 202, .11 S. Ct. 80, 34

i Ba i i I oh hie bin nn ob aS E kis 29°

Kiyoshi Hirabayashi v. United States,“320 US 81, =~

- 63 S.°Ct.:1375, 87 L. ed. 1774 (1943) ..... Fei, eee . a

Levers v. Andersony 326 US 219, © Ss. Ct. 72, 90 L. . aa |

hs CO ak cir as .45, 46

Linea Aerea Taca De Vesti, eo A, et al., Air

* . Carrier Permits, -Docket No. 2180, 7 CAB 317

5 RE Gx b ENE CRASH Ol dan eek WAKAO 18

Mallory Coal Co., et al. v. National Bituminous: Coal .

eat Commission, 99 F2d-(CCA DC- 1938) 399 . 41

. Marbury v, .Madison, 1 Cranch 137, 2. L. ‘ed. 80 ea

oat “(1803) OT FT ee eae Oe ea re eee po Ce meme ee 28,29°

_ Markham, etal. v. Cabell, 326 US 404, 66 S.Ct. 198, *.

; Ohi 18 GO iiss, as

Mississippi v. Joknson, 4 Wall. 415, 18 ‘L. ed. 437 ©

F EE weeded Coa k vk ad hae Wk Saale anor 3

’ . Muskrat, et al. v. United States, 219 US 346, 31S. Ct. *

‘Bey. Oe Le OE; BOR CITT) oa vie ce Ricci. (37.

O’Donoghue v. United States, 289:US 516, 53 S. ie :

; ‘ly hee dae We MM AD cis oosiccsceeuiei + 3%

; Oetjen v. Central. Leather Co., 246 US 297, 38 S. Ct.

309, 62 L. ed. 726 (1918) ....... ee Re ee 29 .

. Old Colony Trust:Co., et al. v. Comm’r, 279 US 716,

: ‘49'S. Ct. 499, 73 L: ed. 918 (1929) ...... SE 36

Pacific Overseas Airlines Corp. v. Civil Aeronautics

_ Board, et al, 161.F2d (CCA DC-1946) 633 . 42 |

Pan American Airways v. Civil Aeronautics Board,

‘et al., 121 F2d (CCA 2- 1941) :810 ..:.... Opes ty 7,42

: Pittsburgh, C. C. and St. L. ‘R. Co. v: Backus, et al., 3 te

——-:154 US 421, 14S. Ct. 1114, 38 L: ed. 1031 (1894)

t cg

“(TABLE OF AUTHORITIES— (Continued)

Cases— (Continued) |

| PAGE

In re Sanborn, 148 US 222, 13 S. Ct. 577, 37 L. ed. .

GO Ce oc kccnccvuicdeueinatiisoccns Guar

Sg Southland Industries v. Federal. Communications

Tore cens Commission; 99 F2d (CCA DC-1938) 117 . 46

- State of Russia v. National City Bank of N. Y., et al.,

69. F2d (CCA 2-1934) ee ce OA a RSS 29

Underhill v. Hernandez, 168 US 250, 18 Ss. C. 83,

A Fir al OE IN ae oe rn 29

United States, et al: v. Abilene & S. R. R. Co., et al.,

os 265. US 274, 44 S. Ct. 565, 68 L. of 1016

; ~ 1924) is aban akwarced pa denkGane ees 44, 46

United States, et al. v. American: Trucking Associa-

, _. tions, et al., 310 US 534, 60 S. had 1080, 84 L.

Oe Me RE Rc ao pecdaanaacd eras ese eane- 42

‘United States v. Belmont, 301 US 324, 57 S. Ct. 758,

BPE ol iis CUBBE)s vacbvesenecess peer

United States v. George S. Bush & Co., 310 US 371,

60 S. Ct. 944, 84 L. ed. 1259 (1940) ...... 27,28,42.

- United States v. Curtiss-Wright Export Corp., ‘et al,

.299 US 304, 57 S. Ct. 216, 81 L. ed. 255

(1936) hein dads token se ans page? 26, 27,30, 31, 32, 43

‘United States v. Jefferson Electrie-Mfg. Co., 291 :

e US 386, 54 S. Ct. 443,.78 L. ed. 859 (1934) . ..37, 38

United States v. Jin Fuey Moy, 241 US 394, 36 S. Ct. A

2 ey A Tas: 6b SARE OB a iTS 42

United States: v. Palmer, et al.,. 3 ses pd 610, cy Mg

’: Gh HE CI co cc Lig deue Mines tateiveisct 29.

4 Unites States v. Pink, et al.:, 315 Us 203, 62 Ss. p> dy |

552, 86 L. ed. 796 (1942) Socbew esas aeidanses 30

United States, et al. v. N. E. Rosenblum Truck Lines, e

. $15 U.S. 50, 62 S, Ct. 445, 86 L. ed7'761 (1942) 42 .

Z & F Assets Realization Corp. v. Hull, et al, 311 =

_. US.470, 61 S. Ct. 351, 85 L. ed. 288 (1941) :.. 33°.

.- Civil Aeronautics Act of 1938:

TABLE OF | AUTHORITIES— (Continued)

United | States Constitution.

PAGE

Art, If, Secs. 1 and.2 ......ccecnetleceeneenstenees 22

Pag yO er ey eh chan 36

United State ‘Statutes.

Sec, 401, 5% Stat. 9875: 235; 4 USCA 481 j |

Sec. 801, 52 Stat. 1014; 54)Stat. 1238: 49 USCA

OOo oY de daarachatey “8, 24, 26, 27, 34, 40

_ See. 1(19), aadin 1 (21), 52 Stat: 977; 54 Stat.

1233: 54 Stat. 1235; 49 USCA 401(19) ... 8,9

Sec. 802, 52 Stat. 1014; 54 Stat. 1245; 49 USCA

‘602 FE Seg tape e Ta ee ee re s~@eoetenhed 10, 23, 24,26 -

Sec: 1005, 52 Stat. 1023; 54 Stat. 1235; 49 USCA

: OO 25s AiR iad hei -.,..5, 12,44,45 .

Sec. 1006, 52 Stat. 1024; 4 Stat. 1235; 49 USCA

: OO RAE EMEP .. 2. .6, 7, 8, 40,41, 42

* Sec. 1102, 52 Stat. 1026; 54 Stat 1235; 49 USCA —

IE inindevetecutince sige peve' 10, 11, 24, 26, 36

Air Commerce Act of 1926, es 6, “44 Stat. 572, es.

‘Stat: 1028; 54 Stat.. 1235; 49 USCA‘176 ....11, 15, 18

Appropriation Act of 1913 ..........-- (arnesenen® 26

' Merchant Marine Act of 1920 agusisveswiekdenede - 26

_ Logan Act, 18 USC, Sec. 5..-.....---.-- spcgeactoe me

. Dalene a i) 1857 (it Stat. 1872) Ne ae 5 22

Congressional Material.

Cable-Landing Licenses, Hearings on, S. 4301, 66th

_ Cong., 3d Sess., 1921, p. 250 .....--.---+-+- 22

Report of the Air Coordinating Committee, House

Doc. 148, 80th Cong., Ist Sess. .....--.-- piane 18

H. R. 9738, 75th Cong., 3d Sess. p. Te es ca ee

75th Cong., 3d Sess. p. 672, May 12, 1938 bedabiess:. ae

75th Corg., 3d Sess. p. 6853 (1938) .......----- ‘i.’ ae

ven tie ‘TABLE OF AUTHORITIES— (Continued)

z International (eolabidliis ‘Tréaties: and

* Agreements. 4

. aN PAGE

_ Agreement, ‘Saale the United States and. Argen-

ee Mi SOUT os cain extn esivewsd unde’

Agreement between the United States and Aus ralia

-, ‘and New Zealand, December 3, 1946 .WJ...-.

Agreement. between the. United States and Belgium,

Pa 6 i A

‘or between ‘the. United States pore ees

(Treaties and Other Interhational Acts Series)

October 6, 1946°.... sre DONS gm igh eS ee Ee

BS Agreement -between the United States ‘and Canada

pee (Execttive ' Agreement Series i

SE iis ici i Acme een Gs tv seule dies

Agreensent between the United States and Canada —

(Executive Agreement. Series 457), February .

Agreement between the United. States and Chile,

: ON Ai, BOE ob vive cn's Cadied igen deci acck:

_ Agreement between the United States arid China,

; ee Me a a

Agreement between the. United States and Columbia,

é a Panes TA, TU os ae ik varios

Agreement between the: United States and Pinthine

slovakia, (Treaties and Other International .

: Acts Series), wenuaty, 3, 1006 3 occas ees

Agrostis between the United States and: Denméiie

(Executive Agreement Series 58), April 18,

i) Sp ane Sip MENS vo dee nd Vase eeeeed The

‘Agreement between the United States and Denmark, -

paca! 4, 1965 - eres oSve iesbedcebdstes xe

ie 3 ‘Ene between the United. States ee Denmark .

: a TABLE OF AUTHORITIES —(Continied)

International Conventions, te —(Continuedy

(Treaties. and-Other International Acts Series), ‘

is March 21, “1946 eee oe © 0.4 0.0 60.0.6, 0,0, 6 01,0,.0,550 418 6'9 16° 17

Agreement between- the United States and Ecuador, LY ie

January 8, 1947. .....-..eee ee ee een eet eee. . a i

Agreement between the United States and Egypt

~ (Treaties and Other international Acts secnaoas

. June 15, 1946 ....... seer cece ee wee es eee e ee es 17

Agreement | between the. United. States . and: France

(Executive Agreement Series 152), August 15,

‘PAGE .. *

gr a Cre? Neieaswesge emeadote ag See

. Agreement - ‘between the United States and France .

_ (Executive Agreement Series), March 27,1946 17

_ Agreement between the United States and Germany, Ris,’

(Executive Agreement Series 38), June 1, 1932 16 —

vs Agreement between the United. States and Great -

Britain (Executive Agreement Series »): May lee,

GONE kc con weds bedas ean Nab teliapeles's 16

Agreement between the United States ad ‘Great 5 stoke

_ Britain (Executive Agreement ures Feb- "

ruary 11, 1946: ...........e- eens eines fits 17, 35

_ Agreement between. the United States ‘and India, eyes §

November 14, 1946 .......6.6..s0sedgeeees Aye

Agreement between the United States -and Ieland Ge

(Executive Agreement . Series manag 8 pyrwery:

Dy NOG as ons ho cane esis a sect cask indae’s onnye aE ae

Aereiaint between the United States nt Ireland - :

‘(Executive Agreement oe 460), February \

et SI fips aacala go i gis b'awak bawawwia eaurens *17

Agreement between the United States and the Irish _

. Free State (Executive Agreement Series. 2) aN

| meee * 1937 Wieetse MW ete way Gee eee + 248.

TABLE OF AUTHORITIES—(Continued)

| International ‘Conventions, etc —(Continued)

"Agreement between the United | States. and Italy ;

_ (Executive Agreement Beries 24), ee 13,

1 RR Naas eb Se indi eee Pee

Agreement between the United States and idee

(Treaties and Other International Acts Series),

he Ae a: 4, 1945 Moe os Seeks wheres, oe a

PAGE

16.

* tame TS IONE eB EAE EE. Poo

_ Agreement ‘between the United States ‘an Liberia

_. +, ‘(Executive Agreement Series 166); June 15, .

age tee RAE OLE PPE POOLE TDL EU ane rigntiga 16

Agreement between ‘the United States and ‘The phic ae

| Netherlands, May 24, 1933 FPO PES PLE Ee Pee

Agreement between the United States and Norway °

_ (Executive Agreement Series 8), November -

Te BARS A a AES 16 -/

Agreement between the United ‘States and Norw ceca

' (Executive Agreement Series bay a Octo f

15, 1945. ... RIKER E ARS SERTER ELE R TOES EERE E FE 17°

Ppa between the United States and Paraguay, men OE

| >. a SRS AAT oo. cee 17

. , Agreement between’ the United States and” Peru,

. December .27, 1048: 2.0 .0020 01.04 x eo. a:

Agreement between the United States and the enilip- :

“3 ~ pines, November -16, 1946 ......:.......:-. 17

Agreement betwéen the United States and Portugal vase

(Executive ‘Agreement ore December s,s

ee a he FON 64 Nweank eee puget pieteeees “17

Agreement between the United States id Siam, ..

‘February: 26, 1947 |. ..5....5...040........ 17

Agreement between the United ‘States abd Sweden, |

(Executive. Agreament Series 47), October 9, -

: (aig eilekas Viste 16

Agreement ‘between the United States and Sweden,

17.

| epee We

"TABLE OF AUTHORITIES—(Continued)

International Conventions, etc, —(Coritinued)

| » PAGIt

t- betiieeh the United Sta‘es and Switzer-

end (Executive Agreement Series), August

= Be UBEB ncearcieweggcecceecc ces et ke seeccnsece | oe

Agreement between the United States and Syria, ie

Rael Wi 1008. 5 is Shee ete eis. i

‘Agreement between the United States. and Turkey

(Treaties and Other International Acts Series),

Maw Hi UW oo ches bac hivcceda ysis 17

Agreement between the United States and the Union

‘of South Africa (Executive Agreement Series

54), September 20, 1933 ....2:..:..,.00e00e5, 16

_ Agreement between the United States and the Union

‘of South Africa, May 23, 1947 .............. Bas

Bere between the United States and Uruguay, ©

e December 14, 1946.°... 2... cee eee eee eee eee 17.

: an-American Convention for Air Navigation adopted °

in Havana in 1928 ..... PPLE og Me STEEL OLE oo -

_ The Paris Convention OE 1OID 2c oes in we Ve pe amenee | Bi

_ ‘Miscellaneous.

“%

Cooper, John C.: The Right to Fly, Henry Holt bol Co. is

1947 ...2.. SL eo et ee eee a

Corwin, Edward S.: The President's Control of For:

Cig ATPbee - oo oo ionic ge cov censccccscaceees , 2 :

Corwin, Edward S.: The President: Office and Powers,

é New York ee Press. (2d ed. rev.).

MDG iis gp itincie dil egecdieeseatesies 20, 21, 22, 25, 26

Lissitzyn, Oliver J ames: International Air Transport

—- and National Policy,:Council of Foreign Rela-.

toms (1949)-3:...6,. 0.0. ceeeves Soret 16, 19, 22, 23

‘Willoughby on the Constitution of the United States,

Qa ed.) V. hp. eee eee

TABLE OF AUTHORITIES—(Continued)_

Miscellaneous — (Continued) pat

ee. Writings of Thames Jefferson (Mem. lea), IX, 256 ~-

_ “Advisory Opinions”, Encyclopedia of Social Sciendes, ;

Rarer iy ee ae

“Air Transport:and World Organization” pte John C.°

Cooper, Yale Law Journal, Vv, 5, p.. 1191

ola MB), ore s'e's 5 sek ews PRR E ea ee re OPE Oe

“Airways. for. Peace” , by Eward Warner, Foreign

| Aiteiee VY. Wh 9 AE iiss ak eae. -

| “Legal Rules for International Aviation”, by. Charles :

S. Ryrie, 31'Va. L. Rev. 267 (1945) .:.......

_. “Statutory Interpretation”, by Max Radin, 43 Harvard &

is Law Review 863 (1930) -....0 2.2.5.0 .nd ace os

“The Diplomacy . ‘of. Air Transport”; by Olivet F.

_ Lissitzyn, Foreign Affairs, Me 19, No. 1, p. 156.

h) : Seinen nore peer Le amr eee rere er een

'. “The-Future of the Airways”; by Sir Frederic Hand- .

pork ley Page, Foreign Affairs, V. 22; No. 3, p. 403-

none 0...) Seer ee eee eee ere re re ;

: “Treaties and Congressional Executive or Presidential

. Agreemenjs: Interchangeable truments of 7

‘National Policy”, by Myres S°McDougal and '

_ Asher’ Lans,-54# Yale Law J urnal 181 (1945) . .22, 26

ee “Wings for the Trojan Horse”; by Melvin Hall and .

_ (Waiter Peck, ‘Foreign Affairs, V.. 19;. No. 2, P.

347’ (1941) . LekiAe Na Ghe dha bdeas ween bes 646d |

“60 Proc. Am. Phil. Soc. XV-XVI (1921) Sis dais

Journal. of Air Law and Commerce, October 3988,

Pore Os a 439

eee eee eee en Mase e eee eeee een eeee

- Secretary of State Marshal’s statement of pac a ‘

, reciptocity,-June 12, 1947; 1947 US Av. R. 265 i

as _Opinjon by Attorney General Tom Clark to Secretary -

__ of State, June: 18, 1946, US. Av. ‘R. 412. te seeee 21,33 -

ae BORA te ce oN . oF oe

‘SUPREME COURT OF THE UNITED STATES: ete

- octoneR ‘TERM, st eee

"G¥CAGO AND SOUTHERN AIR LINES, INC.,. pees =

| Fenner Se Lae

versus .

Pee

| WATERMAN | STEAMSHIP CORPORATION, : a 7.

— ae Ve

[BRIEF IN BEHALK OF CHICAGO AND SOUTHERN AIR AL

"LINES, INC. ON WRIT OF CERTIORARI TO THE |

UNITED STATES CIRCUIT. COURT “OF, APPEALS

‘FOR THE FIFTH CIRCUIT. — | | ‘

oe tie Re ee | oo

MAY IT PLEASE THE ON ee \

ece OPINION BELOW. ee Rit acura,

The opinion” of the court below. is reported in: 159 F.

” . 24 828 (R.-407), ahd the decision of the Civil Aeronatitics eo |

Board upon which the proceedings. of the court below |

are. based: is cies OE in 6 CAB 657 e Be, .

-'\&

a . -“

is ot

ae Pig °

_ JURISDICTION.

7 f .

The jurisdiction of thi Court is: invoked: under Section:

246(a) of the Judicial Code,_as amended by the Act of t

February 13, 1925, chap. 229, Sec. 1, (28° U. S: C. 347(a),. —~ .

‘i 43 Stat. 938). The decree of the lower court was rendered:

February 14; 1947. . ‘There was no ‘application . for rehear-

‘ing, and Chicago and Southern ‘Air Lines, Inc., sometimes

referred to herein as C. & S., filed a petition for a writ of

certiorari on May 6, 1947, Thereafter Civil. Aeronautics. -

Board, hereinafter referred to as the Board, filed a similat pes:

‘petition on-May 13, 1947. - Certiorari was granted to both

. applicants, on. June 16, 1947.1 The c & S. petition: is

‘Ko..78 and the Board’s pétition is No: 88 on the docket. of

mob ees

ees 3 - STATEMENT: OF FACTS.

In December, 1940, ‘Waterman Airline, Inc.,.a iiketalery

of. Wate Steamship Corporation; filed an application

with ‘the. oard, under Section 401 of ‘the Civil Aero-

nautics Act, 1 for ‘a certificate of public. convenience and *

aes necessity Oo engage in air transportation between the

‘United States and Puerto Rico.? Thereafter, Waterman

E ‘Steamship Corporation, " referred to herein as Waterman, |

" was itséif ‘stibstituted as. ‘the applicant.’ ie Hy Be

Meanwhile, C. & ‘s: filed with the Board an applica-

tion seeking a cates of public convenience and neces- |

1R "414.

tm June 23, 1938, c. “601, ‘Sec. 401, 52 ‘Stat. 987; Raate, ‘Pian No, Iv;

‘Sec. 7, eff. ‘June’ 30, 1940, 5 Fed. ‘Reg. 2421, 54 Stat 1235; 64

USCA 481, f

“2R. 42. é

3R. 96.

‘ * e .

- ° #

2 . . . .

~ 3

sity to engage in air transportation: ‘between New Orleans

and ‘San: Juan,: (a) via Cuba, Haiti and the Dominican. ;

“ Republic,’ and (b). via Tampa, Miami, Cuba “Haiti and the’

~. Dominican Republic. C. & S. also filed applications for

“other routes in the Caribbean ‘and the. Central American

‘~areas.‘ The applications filed on behalf of C..& S. and

' .of Waterman were consolidated with many others’ in a

’ proceeding referred to as. “Additional Service ‘to Latin .

America’. Poti “of : ‘

‘Sets heafings were had on the applications, copies of

the various applications’ were. transmitted to the President

of the United States*.as required by Section 801 ‘of the.

Act.” Hearings were held before examiners of the Board’ -

- ‘and. briets were filed with the examiners, who’ submitted

their report. on March 5, 1945, serving copies ‘of the report

on all parties. Exceptions and briefs-were filed and all

parties were: allowed to preserit arguments before the.

_ Board from April 30 to May 5, 1945. After these argu-

- ments the Board prepared an opinion and proposed orders

* granting and denying ‘certificates of public converiience

and necessity, and, pursuant to Section 801 and 5

. the. publication of the opinion and proposed orders, ‘the.

r Board submitted them to the President for his approval.

The President. disapproved in part the opinion and pro-—

posed orders as submitted by the Board. The Board there-

upan revised its opinion and its orders to conform with

the President's ‘directions.*

—4CE. R.

| 232. , 7

5 Docket 525 of ciel: iapeeiuaaien Beard. -

®Cf. R. —~ the opinion -of the ee ,

TInfra, p. 8.

* Opinion of the Board, R. 126.

- The changes did not apply to the applications made by

faterman or C. & S., but were directed to applications

for other foreign routes which were a paft of the general

hearing on additional service to Latin America. There

were four such changes made at the instance of the Presi-

dent. First, although the Board saw no. necessity for

the issuance of a certificate for an extended South Ameri-

can route, the President thought it. advisable, and Braniff |

was, therefore, given one.. Second, the Board denied the

_ necessity of a second carrier between New York and

Bermuda, but -one of the members of the Board made a —

minority report recommending that National Airlines be

_ given the route. The President overruled the Board and

it granted a second certificate, awarding it not to National,

but to Eastern. Third, the Board found there’was no

" necessity for a second carrier between Miami and San’

_ Juan, but thaPresident thought a second certificate should

_ be issued and one was granted Eastern Airlines. Fourth,

‘Board proposed to award the route between - Los

_ Angeles and Mexico City to Pan American Airlines, but

the President preferred that the route be awarded Western

Airlines. and, accordingly, the award was made to the

latter.

- On May 17, 1946, the Board published its ‘opinion which

‘contains the modifications required by ‘the President."°

Included in that opinion was the decision that C. & S.

be issued a certificate of public convenience and necéssity

for, foreign and overseas air transportation of persons,

property and mail “between, the co-terminal points, New

‘® Opinion of the Board, R 181. ‘ 2

. RI 118-289. a

, |

Orleans, La., and Houston, Tex., the intermediate point .

Havana, Cuba, and (a) béyond Havana, Cuba, the inter- ~

. medigte points Camaguey, Cuba, Port au Pririce, Haiti,

Ciudad Trujillo, Dominican Republic; and . the terminal.

point San Juan, Puerto Rico, and (b) beyond Havana, -

Cuba,-the intermediate points Kingst6n, Jamaica, Aruba,

Netherlands West Indies, .Curacao, Netherlands West In- ©

dies, and the terminal point Caracas, Venezuela.” At. the ©

same time, the Board denied the applications of Waterman -

and others for all or portions of the foregoing routes.’

The Board also denied Waterman’s previous motion of

May 6, 1946," requesting the Board to reopen the’ pro-

‘ceedings to receive further evidence and for oe

on the proposed New Orleans-San Juan route. | |

On May 22, 1946, the President formally approved the

decision of the Board to certificate petitioner and to deny.

the other applications. *” On May 24, 1946, a ‘copy of the

' Board’s decision, as approved by the President, was served

upon Waterman, and on the same day the enttificate + was

issued to petitioner. Cl? a

Qn’ June 24, 1946, Waterman filed a request for re- .

hearing.* The rules of the Board, which were promul-

gated under- Section 1005 ‘of the Act," provide that’ a

petition for rehearing shall not. operate as a Stay. of the

- effective date of the order sought to be modified ‘or -

vacated, unless. specially so ordered by the Board.'** =e

“ 1, Re 206-211; R. 258; R. 269, et seq.

ISR. 291, et seq. rte

¥ fafre, pp. 12, 13. .

sa R.. 344.

No stay of: the Board’s opinion of May 17, 1946, was

requested by Waterman and none was ordered by the

Board. Moreover, on July 12, 1946, less than sixty days

after the rendition and the service of the opinion of the

‘ Board, the Board denied the application for a ee 7

Thereafter, on capaci’ 6, 1946, considerably: more

_ than sixty days after the rendition and service of the |

" . Board’s opinion, Waterman filed*a petition in the court

below, asking for a review of the foregoing action . by a

the Board.* - = ge ,

‘After the hewesiee of sixty days, a petition may be

filed in the Circuit.Court of Appeals only upon leave. of -

_ that court after a showing of reasonable grounds for- fail-

“ure to file the. petition therétofore.* No such showing .

was made by Waterman. and the court was not called upon. =

| ses did not ‘make such a — ‘in that — :

The Board filed ‘a motion to dismiss the petition ‘to

reyiew for lack of jurisdiction. * -After being grantetleave ,

‘by the court to intervene, C. & S. also moved to dismiss

Waterman’s petition to review?

; ©<

. The anion ‘o dismiss filed by Crk S. was "predicated,

in part, on the ground that the: court below lacked juris-

diction to review an award, approved by the President of

the. United States, granting a. certificate of Rublic con- —

venience and necessity for overseas~and ° foreign ‘trans- :

TR R. a28-et eq : es |

. a ct. 8 Section 1006(a) of the Act, ~ P. .

21 R. sa.

“e

. : Spe

: portation. The motion to. dismiss was also predicated on

the ground that the-Waterman petition for review was

not filed within the sixty-day — allowed under yee

tion 1006 of the Act. |

After sata the court. below rendered ‘its decision

denying the motions to dismiss filed by C. & S. and the.

‘Board. —In doing so, the court recognized ** that its opinion .

_ was ‘diametrically opposed to that of. the Second Circuit

. Court of Appeals in Pan American. Airways Company v.

Civil Aeronautics Board.?* As wased, ‘eet was

granted by this Come *

STATUTORY PROVISIONS INVOLVED.

This colin arises under the Civil Aeronautics Act.

Sections 1006, 801, 802, 1102;and 1005, of that Act, as well —

"as Section 6 of the Air Commerce Act. of. 1926, are perti-

nent to the issues raised. Section 1006 (a) provides: -

“Any order, affirmative or. negative, issued by

the Board under this chapter, except any order -

in-respect of any foreign air carrier subject.to the

approval of the President as. provided in Section

801 of this chapter, shall be subject to review by-

_the circuit courts of appeals of the United States

or the United States Court of Appeals for the

District of Columbia _— petition, filed’ with-

22 R. ‘407 at 411. |

22a 121 F. (2d) 810..

23 R. 414.

24 June 23, 1938, c. 601, Sec. 1006, 52 Stat. 1024; Reorg. Plan No. IV

Get. 4, ott: Suen 30, 1940, 5 Fed. Reg. 2421, 54 Stat. 1235; 4¢

USCA 646. : oe et

in sixty days after the entry of such order, by

. any person disclosing a substantial interest in

‘such order. After the expiration of said sixty

days a,pétition may be. filed only by leave of

court upon. a showing of reasonable grounds for

failure to file the petition theretofore.”

It is ‘Ciel that the order sought to bs reviewed is.

not an order in respect of a “foreign air carrier’ ' which is

- defined in. Section 1(19) of the Act: 38

“ ‘Foreign air carrier’ means any person, not a

citizen of the United States, who undertakes,

whether directly or indirectly or by a lease-or

. any other arrangement, to a ‘in foreign air

transportation.” .

me 6

‘

“Although C. & S. is not a “foreign air carrier”, as de-

fined by the Act; the certificate issued was a certificate

»y _subject to the approval of the President under Section 801,

which provides:**

“The issuance,. - denial, transfer; amendment,

: cancellation, suspension, or revocation of, and the

terms, conditions, and limitations contained: in,”

any’ certificate authorizing an air carrier to en-

gage in overseas or foreign: air transportation, or

air. transportation between places in the same _

- Territory or possession, or any permit issuable to .

any foreign air carrier under Section 402, shall be

subject to the approval of the President. Copies

25 June 28, 1938, c. 601, Sec. 1(19), 52 Stat, 977; ‘Reorg. Plan No. III,

Sec. 7, eff. June 30, 1940; 5 Fed. Reg. 2109, 54 Stat. 1233; Reorg.

* Plan No. IV, Sec. 7, eff. June 30, 1940,-5 Fed. Reg. 2421, 54 Stat.

* 1235; .49 USCA 401(19).

_ -,, June 23. 1938; c. 601, Sec. 801, 52 Stat. “1014; Reorg. Tian No. III,.

Sec. 7, eff. June 30, 1940, 5 Fed. Reg. 2109, 54 Stat. 1233; 49

USCA 601. .

of all applications in respect of such certificates

and permits shall be transmitted to the President ~

‘by the Civil “Aeronautics Board before hearing

thereon, and all decisions. thereon’ by the Civil

- Aeronautics Board shall be submitted to the Presi-

dent before publication thereof. . .. .” oe

. The certificate granted to c. & S. provides for overseas -

and foreign air, transportation which are defined in the —

vides as follows:” . | ;

- “Interstate air. transportation’, ‘overseas air

transportation’, and ‘foreign air transportation’, -

respectively, mean the ‘carriage by aircraft a

persons or property as a common carrier for com- ~

pensation or hire or the cartiage of mail by air-

craft, in commerce between, respectively—

_ “(a) a place in any State of the United ‘States,

or the District of Columbia, and a place in any

other State of thé United States, or the District _

of Columbia; or between places in the same State .

of the United States through the air space over

any place outside thereof or between places in

: the same- Territory or possession (except the- = =—

Philippine Islands) of the United States, or eee

“(b) a place in any State of the United States,

or the District of Columbia, and any place in a

Territory or possession of the United States; or .

between a place irr a Territory or possession of —

the United States, and a place in any other Terri- -

tory or possession of the United States; and

27 For complete citation see note 25.

Act by Section 1(21)(b) and. (c). Section 1°(21) prow *

“10

““€e) @ place in the United States and any place

outside thipreof, whether such commerce moves ~

wholly by aircraft.or partly by aircraft and partly

by. other forms of transportation.” ays

Cc. & S. will attempt to show. that an order for foreign

' and overseas transportation subject to the. approval of: the .

President is. not reviewable because the court may not.

review the action of the President in the exercise of ‘the - :

powers given lim by the Constitution to conduct our —

- foreign affairs and to act in the capacity of Commander- ©

"°. fin-Chief of the armed forces. C. & S. contends that the ‘ —

order is the result of the combined decisions of the Board

and the President and - that a review therecf necessarily:

involves the review of the President's action. Finally,

-C& S. contends that if the action’of the Board can be -

dissociated from ‘that of: the: President, the order of the .

/Board is not. final and presents.» no “case or controversy".

as In interpreting Section 801, attention will be called to

~ Section 802 and Section 1102 as illustrations of the ‘statu-

tory pattern. Section 802 provides as follows: ‘e £oh:

“The. Secretary of State shall advise the Board o

of, and’ consult with the Board concerning, ‘the if

negotiation - ‘of any agreements with \foreign gov- rc.

ernments for the establishment or development of .

air navigation, including air. Toutes and services

tieiceattes ees: \

#8 June 23, 1988, 601, Sec. 802, 52 Stat. 1014; Reorg. Plan No. IV,

Sec. 7 oz.” June 30, 1940, 6 Fed. Reg. 2421. 54 Stat. 1235; Ad

USCA’

Section 1102 provides as follows: E

hn ‘exercising and performing its powers: and 3 a

‘duties under this chapter, the Board shall do so’.

consistently with any obligation. assumed by the |

‘United States in any treaty, convention, or agree-_

States and any foreign country or foreign coun-

> tries, shall take into consideration any applicable ©

Jaws and requirements of foreign countries and

shall not, in exercising and performing its powers

and duties with respect to certificates of conveni-

_- ence and necessity; restrict ‘compliance by any air. —

carrier with any obligation, duty, or liability im- ~

. posed by any foreign country: Provided, That this .

section shall not apply to any obligation, duty, or ,-

' jiability arising out of a contract or other agree-

ment; heretofore or hereafter entered into between —

an air carrier, or any officer or representative

thereof, ahd. any foreign. country, if “such con-

tract or agreement is disapproved by the Board as

being contrary to the public interest.” °. Re

_. + This country recognizes: no freedom of the’ air, as will

‘be seen in Section 6 of the Air Commerce Act of 1926, .

which provides?” - tes <r

_ “(a) The United" States of America is hereby

declared to possess and exercise complete and ex-

‘clusive national sovereignty in, the air space above

the United States, including the air space above

se Jahe 23,1988, ¢. G01; Sec. 1102, 52 Stat. 1026; Reorg. Plan No.

— i 9 June. 30, 1940, 5 Fed. Reg. 2421, 54 Stat. 1235; 49 .

"80 May 20, 1926, ¢. 344, See. 6, 44 Stat. 572, as amended June 23, 1938,

a Gor, See. 1107(i) (1) (3, 4,5), 52 Stat. 1028; Reorg. Plan No. IV, °

Sec 7, eff. June 30, 1940, 5. Fed. Reg. 2421, 54 Stat. 1235; 42

USCA 176.

° ’

ment that may be in force between'the United =

2 revie 2 vith: ; the period allowed, attention is called to.

12 |

_ all inland waters and the air space above those

portions of the adjacent niarginal 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 a os

forces of any foreign nation shajl not be navigated —

in the United States, including the Canal Zone, ae

except in- accordance with an authorization

granted by the Secretary of State.

““(b) ‘Foreign. aircraft not a part of the armed

_ forces of. the foreign nation shall -be navigated in

the United States only if authorized as hereinafter

in this section provided. .

“(e) Ifa foreign. nation grants. a similar privi-

lege in respect of aircraft of. the United States, «

and/or airmen serving in connection therewith, f

the Civil Aeronautics Board. may authorize _air-

craft registered under the law of the’ foreign |

‘-; nation: wa not a part of the armed ‘forces thereof

‘to be navigated in the United States. No foreign

aircraft shall engage in air commerce-otherwise

than between any State, ‘Territory, or possession

of the United States (inchiding the Philippine. :

Islands) or the District of — and a foreign

ountry.”” ii gs

the failure of Saudia to file its petition to *

Séetion 1005

ie “Except ‘as otherwise provided in this ‘iuiee

all orders, Tube, and regulations of the Board ©

31 June 23, 1938, c. 60i, 1005, 52 Stat. 1023; rg. Plan No. 1,

the Civil Aeronautics Act:** .

Sec. 7, eff. June 30, 1 0, 5 ‘Fed. Reg. +t en 34. Stat. 1235; 49°

USCA 645(a). 5

- . ' ~\

| 13 .

shall: take effect within such reasonable. time as

: -. the Board may prescribe, and shall continue in

force until its further order, rule, or regulation,

‘or for a specified period of time, as shall be pre- .

. seribed in the order, rule, or regulation: Provided,

That’ whenever the Board is of the opinion’that

an emergency requiring: immediate action exists .

in respect of safety in air commerce, the Board

is authorized, either upon complaint ‘or upon its.

own initiative without complaint, at once, if-it so

' . orders, without. answer or other form of pleading

by the interested person or persons, and with or

without notice, hearing, or the making or filing of

a report, to make such just and. reasonable. orders; ~~

rules, or regulations, as may be essential in the

‘interest of safety in-air commerce to meet such

emergency: Provided further, That the Board shall

immediately initiate proceedings relating to the

_. matters embraced. in any su order, rule, or

_ regulation, and shall, insofar practicable, give

preference to such’ proceedings over. all others

under this chapter.” Saat oi I

——_—

ae _.. $PECIFICATION OF ERRORS. | -

"The Circuit Court of Appeals erred— :

(1) In holding that it had jurisdiction to re

- view a decision of the Civil Aeronautics Board,

approved by the President, under Section 801 of

the Act, granting a certificate of public con- .

venience and necessity for overseas and. foreign

air an aa eae ;

14 oe

(2) In soled ‘that Watermait’ S petition for Ke

review was timely filed under, Section 1006 ot. :

the Act; ce LR ene

- file by-C. & S.

A. The paltinne aevaived. in “adn: air transportation

are chiefly political, having to do. with oe policy

5 and national defense. —

International air transportation became a problem em only _

following ‘World. War I. During that conflict. taney

‘first emerged as a competent medium of transportation, -

‘but it also emerged as a proven wedpon of war. Its -

potential as war materiel greatly colored. ifs acceptance

. as’ an instrument of transportation and influenced formu-.

lation of the legal concepts for —_ control of international

. air travel. ae

on —

The chief problem growing out of the schists: of the

airplane as.an instrument of- international travel was ‘the

conflict between the proposed doctrine of freédom of the

air and -that of air sovereignty.™ - Directly after World .

War I, certain authorities urged acceptance ‘of complete

(3) In failing to ‘grant the métion Jo spcrcaanll ce = :

freedom in air. transportation, but these few voices ‘were . i.

“32 cael of Air Law and Commerce, ‘October, 1439, V. 10, p. 439.

33 “The ab age | of the Airways,” by Sir Frederic Handley Page, Foreign

W cacusiacina - 22, No..3, p. 403, at 407 (1944).

se a Ne A : : fe s * ; x ’ ss \ “

” goon hon out at b the Paris Conference of 1919, ain: the

convention concluded there recognized that each nation

exercised sovereign rights in the air space. above its

territorial. waters and its actual | land mass. ”

\ «

8° argc eee . a a

‘The United ‘States. ‘was. inte a. party to the Paris con-,

jetta but it made a legislative declaration in 1926 in

~ Section 6 (a) of the Air Commerce Act of that year to :

the effect that this country had complete sovereignty over

all air: space superadjacent to its territory and territorial .

waters.» The barriers thus erected by the United States, -

-as well’as by all- other nations. against foreign aircraft,

_ were subject ‘to: penetration’ only . through concession - OF

license or ‘permit from the particular sovereign power.~

: , controlling the particulier air —_ heh :

Cte

The penetration of ational: ba barriers involving as it does :

a sacrifice or relaxation of. sovereign - -control presents in &

. this aspect political and milii tary problems that ultimately

have to be worked out on ‘the diplomatic levels. It is .

true that in the Pacific and in South America, Pan Amerij-

_ean Airlines gained a number of private unilateral con- -

cessions. by dealing Sirectly with. the | governments in; .

34 Article I of te. Cone. - stated: “The hi zh contracting: parties .

_ reeognize that every. power has corhplete and exclusive sqvereignty

over, the airspace above its territory and territorial waters.” —

Paris convention resulted in the relaxation. of these air barriers

by. the individual signatories in return for reciprocal rights to

netrate the barriers set up by other signatories, but the réciproc-

- ity was limited to the right to make innocent flights over foreign

territory, not regularly scheduled flights. -

‘5 ‘The United States signed the convention but the Senate did not

' \. approve it. Thirty-three: nations eventually subscribed td it and

it has beeome basic public international law. ‘The United States.

later became party ‘to the Pan-American Convention for Air Navi-

gation adopted in Havana in 1928, ‘which — the —_

. ° principles of the Paris. Convention. — fi

a Section 6, ‘supra, Ppp. a, wee: ae “ st

volved, but this was. : possible only: because our State

‘ : Department ‘at ‘that time allowed “and encouraged this

: method and actutilly used its influence to implement the

negotiations.*" oe , ; |

. ‘ “ t

, ‘ . é

. For the most part, however, the inauguration of air

services by “American carriers to foreign points has been

the aftermath of bilateral executive agreements between

. the United States and the ,foreign nation at which ° the

. terminal point was located or ‘over which the flight was

“ directed. desis <1 saunas

Prior to the’ second: World War ‘many such bilateral -

|” agreements were signed and they were instigated, for the

es most part, by American carriers who desired to penetrate

ne the ‘airspace of another country.** In each instance, the-

2 $7 Lissitzyn, Oliver James: International Air Transport and Nati .

oO. Policy, Council of ‘Foreign Relations (1942), pp: 3865, -387.° Cf. '

“. . \ “also. “Legal Rules for International Aviation,” by Charles S.

: Ryne, 31 Va. L. Rev. 267, 298. (1945).. In the case of Columbia,

the matter was handled through regular — channels .and

-by executive agreement. The argument advanced for the early

‘_> . .° policy in Latin America of allowing American carriers to negotiate

_ directly fo.‘ their foreign privileges was that the United States

“—_- __., Was not ‘committed te any reciprocal obligations limiting its. sov-

: ereignty in favor of forcign.carriers. This procedure <a possible,.

~ however,:.o ly when a minor Fe 7 was concerned. “Airways for

Peace,” by Edward Warner, Foreign Affairs, V. 23, p: 18. As of

' “Dezember, 1, 1943, the Civil Aeronautics Board announced ‘the

_ abandonment by it and the State Department of .the policy of-.

ater unilateral oo concession. —C--A. B. memorandum, dated De-

a a * oe 2, 943. ry we S z ci - x ; .

~~ 38 The following bilateral agreements were concluded before the war:

ode Columbia—Febrtiary 23, °1929; The Netherlands--May 24, 1933; —-

~ +* ° , Italy (Executive Agreement: Series" 243—October 13, 1931; Ger- <*

many (Execitive Agreement Series 38)—June -1, 1932; Sweden

(Executive Agreement Series 47)—October 9, 1933; Norway (Ex-

. cutive Agreemeyt Series 50)—November 15, 1998; Union of. South

. +, Africa (Executive Agreement Series. 54)—September 20, 19383;

ye Denmark (Executive Agreement Series 58)—April 16, 1934; Great

‘Britain (Executive Agreement Series 76)—May 5, 1935; Irish

‘Free State :(Exec‘itive. Agreement Series “110)—1 ber 4, 1937;

Canada (Executive Agreement Series 129)—August 1, 1938; France -

(Executive Agreement Series 152)—August 15. 1939; Liberia (Ex “~

ecutive Agreement Series 166)—June 15, 1939,

‘be

United States, while not always giving equivalent privi-

leges to the national aircraft of the other signatory,.did —

* make concessions. Since the Jast war an ever increasing -

‘number of such agreements has ‘been executed.” .Today.

the agreements usually describe the routes: to be flown

by the respective national aircraft, and empower the con-

tracting nations: to designate their own flag line to fly -

7 _ the route.*”* This is, of course, all handled through diplo-

matic channels by the State Department, usually with

consultation and assistance from the Board,” which is

bound under Section 1102 of the Act to act in conformity

with the : ‘executive agreements. pes SOD

> 3 For example, iecaliod with Canada, Sekeiawe 19,. 1945 (Execu-

_ tive Agreement Series 457), with Ireland, February 15, 1945. (Ex-°

ecutive Agreement Series 460), with Ireland; February . 1, 1945

(Executive Agreement Series 463), with Switzerland, August 3,

tne ae is 1945 -(Executive Agreement Series), with . Norway, October 15,

- 1946 (Executive Agreement Series 482), with Portugal, "December

6, 1945 (Executive A ent Series), with Great Britain, Februar

11, 1946. (Executive Agretment Series}, with France, March 27,

haat, 1946 (Executive Agreement .Series}, with Belgium, April 5, 1946

-. (Treaties and other International: Acts Series), with: Brazil, Octo- ,

. ber 6, 1946°(Treaties and other: International Acts Series), with

. Czechoslovakia; Jan. 3, 1946 (Treaties and other Internationa! Acts

Series), with Denmark; March 21, 1946. (Treaties and other Inter- ©

- national Acts Series), with: Turkey, May 25, 1946 (Treaties and

other International Acts, Series), with Egypt June. 15, 1946

Treaties and other International Acts Series), with “Lebanon,

a, 11, 1946 {Treaties and other International Acts Series), ©

China, December 20, 1946, with India, November 14, 1946;

‘ with Australia and New. Zealand, December 3, 1946; with Peru,

December 27, 1946; with the Philippines, November 16, 1946; -with

- Uruguay, December 14,° 1946; with Ecuador, January 8, 1947;

with Paraguay, February 28, 1947; with Siam, February 26, 1947;

. with Denmark, a 4, 1945; ‘with : Sweden, December 4,. 1945;

with Argentina, May: 1, 1947; with Chile, May—+0, 1947; ‘with

“Syria, April 28, ea eit rith Union of South Africa, May 23, 1947.

a soa Bilateral ‘agreements’ ‘the Bermuda model entered into within

€ the last two years alm al without exception provide for the desig-

; nation ’of .a flag line by the obligee nation.

40 For example, the bilateral agreement .concluded with France on

March 27, 1946, bears the signatures of the American Ambassador

to France, a representative of the State Department and ‘the.

Chairman of.the Civil Aeronautics Board (then Mr. Pogue). Like-

wise, the agreement with Brazil. bears the signature. of dur: diplo- .

matic -Tepresentative and Mr. apccnibs then chairman of the Board.

eae

In Section 6(c) of the Air Commerce Act of 1926 Con-

gress recognized the fact that successful air penetration

by United States carriers required establishment of mutual-

ly reciprocal concessions. A recent report of the Air |

Coordinating Committee appointed by the President em-

phasizes the widespread acceptance of the principle of

reciprocity in international air transportation."

Roe | |

The practical aspect of the reciprocal nature of the

bargaining process is illustrated by ‘several recent de-

cisions of the Civil Aeronautics Board. In one recent case

involving the application of a foreign carrier for service

between Venezuela and the United States, intervention

was made by an American airline which was already

sePvicing ‘the same area. In disposing of this opposition

and allpwing the Venezuelan carrier the permit sought, —

‘the Board said:# 7

“In iohing its decision in the Latin American ~

Air Service case to;,authorize the United States

. ‘air carriers to operate the routes there certificated,

the board naturally took account of the prospect

that the air liries of other states served by our

air carriers would have an opportunity on a fair

= basis to operate. routes in the United. -

States... .”

In short, the ial and eres consequence of certifi- _

eating a United States carrier to engage in foreign -air -

transportation is the obligation to reciprocate by

“a the. Air Coordinating ee House Doc. 148,

eer mee Sees 1947 US Av. B. 124, 220. ako

temen policy on reciprocity as une

_ 1947 US Av. R: 265.

43 Linea Aerea Taca De Venezuela, C. A., et al., Air

Docket No. 2180; T CAB 317, 321 et seq. (1946)

19°

ting a foreign earrier to fly a similar or the same route.

In acting on an application. by a United States carrier to

engage in foreign transportation, the Board and the Presi- .

dent thetefore must inevitably make a silent but implicit

decision on the future application of a foreign carrier

seeking reciprocal privileges. For example, should -a iit,

United States carrier apply for a route to a country.

‘ with whom our relations are strained, the possibilities are

that the certificate would be denied because the State’ De-

_ partment would not be able to obtain air concessions fron

that country or because the price of such concessions would

be equivalent landing rights in the United States, a price —

considered toohigh for reasons of military security and

international policy." oe

Thus, the inexorables of reciprocity require that con-

siderations of national defense and of international policy’

which are involved in a decision to grant or deny a per-

mit *. to a foreign carrier to. fly in the United States

must be taken. into equal account in a decision to grant -

or deny a certificate to a United States carrier to fly. -

in foreign air transportation. There is, therefore, no more >

reason for the review of one than the other. ;

‘In many i a al lak Ad all ee gen

trolied-by the state and operated, not as a profit-making

<3 A rapprochement between nations is usually sealed with an air trans-

port agreement to the absence of ostensible military and —

“political Germany was barred for several years - ~

after W War I from signing the Paris Convention.

was followed by the transport

accord the of 1934 was accom-

by an air agreement. instances are numerous.

op. supra, p. 398 et seq

‘example, extended itself’ into South America with the

20 ne yeey :

enterprise, but as an instrument of that nation’s foreign ge

policy or propaganda.** German foreign air transport, for

~ . obvious desire of political and ideological infiltration. In |

the Pacific Japanese civil airlines were used to hold to-

gether politically a widely diversee and farfluhg empire.**

In ‘the United’ States extension of services by United

States carriers in Latin America has been encouraged to

reinforce our Good Neighbor policy and solidify hemi-

sphere defense. Mail subsidies are granted to United

States carriers to stimulate air services and underwrite

_ .8eronautical developments and establishment of regular

and: familiar routes useful :in the event of war. Thus,’

choice of an American flagline and: its route contemplates

the choice of an. effective vehicle of positive as opposed to |

Negative foreign policy; ~ . '-

As has been demonstrated, -mere certification’ of ‘a

carrier is not enough? Landing rights must be obtained ~

"before ser¥ice can be instituted. Landing rights can be

obtained today only through the interventiun of the Presi- ‘

dent or his alter ego, the State Department, who is alone |

in a legal ‘position to negotiate with foreign governments.*

45 “The Diplomacy of Air Transport,” by Oliver ESS ’

Affairs, V. 19, No. 1, pp. 156, 161 et seq. (1940); and “Wings for

-request for an exequatur for a consul whose mmission was ad-~

dressed,to “the Congress of the United. States” /that, “as the Presi-

“nations or their agents: are to learn what is or has been the will ;

of the nation . . .” ‘Writings of _ Thomas ‘Jefferson (Mem. ‘ed.),

- The State Department is, accordingly, placed. in the posi-

tion of. actively sponsoring the institution by a particular

United. States carrier of a foreign service. The carrier

' . Teceives official sanction. ‘It is the carrier designate of

‘ this nation. It becomes: particularly important, 'there-

fore, that the carrier should ‘be acceptable to the’ Presi- .

dent, or the State Department, and to the government of.

' the foreign. state.

- +B, The authority of the President in this field existed —

_ prior to the Act and ‘emanates from the Constitution.

| In the enactment of Section 801 Congress invoked the

- constitutional functions of the President. It did not dele-

' gate to him its legislative powers in the control of foreign |

commerce.* As shall be shown the President had “exer-

cised authority in the selection of foreign route patterns,

carriers, etc., -before passage of the Act in 1938, and’

Congress needed only to recognize these powers and to

‘set up the machinery for their effective coordination with

_ the work of the Board.” ;

The authority of the President in regulating interna- __

tional air . transportation came, not from Congress, but

Powers, New York University Press (2d ed. rev.), p.- 209, note 28,

‘p. 402. Congress recognized the President’s prerogative in the

_ Logan Act. 18 USC Sec. 5. Cf. Corwin, op. ¢it.. supra, 208

,t seq.; Willoughby on the Constitution of the United States, (2d

bis V. 1, pp. 537 et seq.; Chief: Justice Marshall described the

President as “the sole organ of the nation in its‘ external rela-. -

ons.”

48 John Bassett Moore pointed out that since Congress “possesses no.

power whatever: to make international agreements, it has no such .

power to delegate.” - 60 Proc. Am. Phil. Soc. XV-XVI, 172.

49 See the opinion of Attorney General Tom C. Clark rendered June

18, 1946, advising the Secretary of State that the bilateral’ trans-

port arcreements were valid and-not in conflict with the Act.

1946 US Av. R. 412 et seq. In that opinion the writer said: “The.

“ultimate decision, of. cou under. section 801, must be made by .

the President.” se hye

- &8 Constitution, Art. I

from those phrases of the Constitution (1) recognizing

him as Commander-in-Chief,° (2) empowering him to .

receive ambassadors and public ministers,"' (3) depositing

in him the power of the Executive,” and © authorizing -

him to negotiate treaties.” Seis

There is a strong analogy between. the matters ‘under ?

discussion and the ‘experience of the President with re-

gard to the landing of submarine cables. Occasional spe- ..

cial acts of Congress authorized the early trans-Atlantic ~-

cables, but in the absencé of express statutory authoriza-’

tion, the President after 1869 * exercised his constitutional .

. power as Chief Executive in charge of our foreign affairs - .

- to grant or refuse permits for the landing of cables and

_ to insert: conditions in such permits.

_ Prior-to the Civil Aeronautics Act of 1938 the President,

through the State Department, had concluded bilateral

executive agreements with Columbia, ‘with the Nether-

lands, with Germany, with Sweden, with Norway, with ~

the Union of South Africa, with Denmark, with Great

‘Britain and with the Trish. Free State.” By these agree-

5° Constitition, Art. II, Section 2, Parag. 1

51 Constitution, Art. II, Section 2. Parag. 2.

52 Constitution, Art. Il Section 1, Parag. 1.

i, 2, Parag. 2. | Sen 6 dante @-

Foreign aif , Prinéeton- University 1917; Corwin, The

President: Office Powers, Chapters III, IV, V, snd VI; and

“Treaties - tive or

Interchangeable Instruments of National Policy,” by ~ Myres 8.

aa Se tom. S4 Yale Law Journal 181 at 246 et

(1945)

1 See ‘ese Raggy she 1857 ( Stat. 1872). The special acta are

collected in Cab Licenses, Hearings , 8. 4301,

Cong., 3d Figg ‘ioe > 1 ee p ’ —

* President Grant established the precedent. See Corwin, The. Presi-

_° ments the President obligated this county to permit

regular transport flights and landing privileges to carriers

-of the other contracting parties in exchange for similar

concessions to United States-carriers. Most of the ex-

ecutive agreements provided that the foreign flag line,

applying for a permit under a bilateral agreement, would

apply through diplomatic channels." Thus, the granting

of permits to foreign carriers and the general designation

of commercial routes for United States carriers. were,.

even prior to 1938, matters determined by the President

and. the State. Department without congressional grant.”

_ The,activities of the Board in the field of international

air transportation had to be channelled through and -

limited by the President and the State Department be-

ceause the Board could not assume the prerogative of the

EXecutive to conduct our foreign affatrs, nor could it

assume his’ obligations as Commander-in-Chief charged

with the duty to provide for national security. As a matter.

of fact, Section 802 of the bill- introduced in Congress

_ originally provided that the Secretary of State should =

initiate and conduct negotiations and conclude such agree-

ments as would be’ satisfactory to the Atthority (now

. called: the Board) and the President. This draft of Sectiori

802 was discarded because the power to engage in diplo-

fe .

. The

P ’ nomination through diplomatic

change.” CAB orders Serial No. 626, July 28, 140, 2 CAB 18

24 CO Rex Uae De: pa

' Authority." Instead, Congress carefully avoided any in-'

trusion into the Executive power by directing’ the Board

to act consistently with the President. Sections 801, 802 .

‘and 1102., | ee

Coegeain was concerned ‘with he railitery significance

of foreign air transportation and it was well aware of the

fact that the Board did not have access ‘to secret military

_, and diplomatic information nor the means of coordinating

> military with diplomatic information. The President, as

. Commander-in-Chief and as Executive in charge of foreign

affairs, ‘is alone in that rare panes, 4 !

op ae "Thus, the then | eieiag Truman, commenting. ‘onthe

* President’s. power under Section 801 of the bill, said,“

“This check is requiréd by the very delicate questions of

on. defense which are Anvolved. ee

Testifying Sates the ‘int Comntitiny on . : tateiaes

and Foreign Commerce, es M. Hester had this to. say

of Section 801: 62 Seite

oe ae {Take | for’ instance, this situation with refer-

ence to the provision that the President-shall have

- authority to approve certificates’ of public con- ai

venience and — for American flag airplanes

flying abroad .. oe flying to foreign coun--

. tries, from a. ‘nations? defense :and international

relations standpoint, it is very important that the

President, the War Department, and the Navy De-

partment, as well as- the ‘State Department, have .

$1 75th Cong., 3d Sess.. p. 672, May 12, 1938.

5 eatiogs on H. R. 9738, 75th Cone. 8d Sess., pp. 147- 148;

souiething e: say about where air , will be -

+. established in foreign countries.”

teeth It is not to be denied that the establishment of airlines -

in foreign countries presents econiomic as well as political .

considerations. Congress apparently récognized this fact

"in. drafting the Act. To the. Board Congress delegated

. its power to regulate foreign commerce, ‘setting up cer-

tain ‘standards for the Board - to follow in selecting the

‘proper carriers to bear the United States flag in foreign —

_ transportation. But Congress likewise” ‘recognized ‘that

foreign air travel ‘involves political considerations which

‘were already within the province of the President under

his constitational powers as Chief Executive in charge of -

- foreign affairs. Section. 801 of the Act’ is not only a recog-

nition of the President’s power as the Chief Executive in

_ charge of ouf foreign affairs, but, ‘a recognition as well

’- of the fact that im case of conflict between the economic |

and’ the political considerations, the ‘political ends must ©

first be served. Thus, where in the opinion of the Board |

a-particular carrier may from the standpoint of economic

factors ‘be the desirable applicant for ‘ a particular foreign

and overseas route, if the President feels that political *

‘ considerations require the denial of that carrier’s applica-

tion, or the certification of. another, the President's choice °°

must prevail. ;

ee Often itiade he an iii of the authority given te

the Constitution to Congress to. regulate foreign. com-

merce and, legislate in the foreign. field and the authority _

given to the President to conduct foreign relations.*’.In

—— ee Pe ete cm. BP

- 8 See Corwin, The President, op cit. supra, Chap. VI. , [eee

- : 4 ’ ¢ i } r

such instances, Congress may entrust to the President,

who already ‘has “cognate” powers, complete discret! on\.:_

covering the entire field. United States v. Curtiss-Wright —

- Export Corporation.“ That is precisely what Congress

did in the enactment of. Section 801 of the Civil Aero-

- nauties Act. Bias Oe ae

' . If Congress had made no provision for the President’s

-’ ‘control over. foreign air transportation and had not in- |

cluded Sections 801, 802 and 1102 in the Act, there would

"be presented the necessity of reconciling the “logical in-

compatibles” as Professor Corwin -has described them*— °

the unlimited power of thé President and the plenary power

of Congress in foreign relations.” . But Congress did recog-

. nize the President's power in this “Act, as. Sections 801,

802 and 1102 bear witness.” Having thus entrusted the

President with complete discretion in: the field of foreign

gir transportation, Congress did -not. and could not have

_ intended to direct the Judiciary, which is the one branch °

of government given no responsibility in. the field. of

. ' foreign relations, to interfere with the President in the

exercise: of Ais, complete. ‘authority in that field.*

__._._. $4299 U. 8: 304, 57 S. Ct. 216, 81 L.: ed. 255. (1936).

® Corwin, The President, op. cit. supra, p. 222. oo y

86 By the Appropriation Act of 1913 the Congress attempt] to forbid -

ee Prankiens the right to participate ‘in an: international confer-

‘ence without authorization, but the attempt was unsuccessful.

. Likewise, in the Merchant Marine Act of -1920 the Congress “au-

« thorized -and’ directed” President Wilson to terminate portions of

tiations.” “Treaties and’ Con ional-Executiye or Presidential -

Agreements,” supra, 64 Yale Law Journal 222

8a Prof. Corwin says that the struggle for power Letween Congress

and the President in external affairs presents a political question

and “the Court refrains: from thrusting its oar-into the troubled

waters.” Corwin, The Presitient, op. owt. supra, p. 252 a3

An analysis of Section 801 must \

enacted to provide an intermediate } view of the Board’s

- findings. -Had Congress intended to ‘provide another: step

in the review of the Board’s action, it would not have

confined this review to foreign and overseas air trans-

» portation. ’ Moreover, Congress would not have burdened

the’ President of the United States’ with a judicial func-

tion. | (ee te

Clearly ~Congress ‘wtendéd that the President act in |

his executive capacity when’ approving ‘or disapproving —

- the issuance of. certifidates’ or permits for. foreign air

~ transportation, Of necessity the President is not limited

in his action by the evidence and information contained

in the record before the Board. He may base his decision

on miiters outside the record such as military and diplo-

matic information of a confidential and secret nature.

ait The basis:of the President's action is, therefore, not a

matter of record. and in the absence ‘of such a record,

2 oad decision cannot possibly be susceptible of review.”

A similar interpretation of i a similar statute was made

by the Court.in United States v. George S. Bush & -

- Co In that'-case the authority of the President to..

_ imerease duties on. imported: products to ‘equalize their

costs with that of domestic products, was held to be final

_ and not subject to judicial review.. There, ws authority

Ope arn Seem ace ar is ty

ey, States v. Bush, ibid.

Pos

veal that it was not

to the President was legislative only. The’ statute under

consideration was the Tariff Act, which was enacted under

“the power of. Congress to regulate foreign commerce. —

' Congress had provided that ‘a commission should hold

hearings on the readjustment of duties and Submit’ its

findings to the President, and the . President was then

empowered to issue a proclamation approving the rates. :

of duties and changes, in élassification specified in any ~#

" report of the Commission if in ,his judgment: such rates”

and changes were ‘shown -by uch investigation to be

necessary to equalize the difference in the cost of produc-

*tion of the domestic and foreign artidle. The Court said:

“For the judiciary ‘to. probe the peasoning

which underlies the proclamation would amount ,

‘to a clear invasion of the legislative and executive

domain. 8 7 : ae

The instant case presents a - much peers ger ‘ground: for

- judicial abstention. Here -the President ‘is acting, not™

- under administrative authority granted by Congress _ in ¢

the exercise of its power. over foreign commerce, but :

'-* under his own constitutional authority as the execiltive

in ‘charge of our foreign’ and diplomatic. affairs’ on the

-. political evel... eas

‘The rule is wath recognized that the j@iciaicy will not \

" review action of the political branches of the government. e '

This rule grows technically’ from the doctrine of separa- _

_ tion, of powers and practically out of. political exigency.

The original ‘premtise was = by Chief J se iy Marshall a

in eee 5 v, Madison:? _ baat 3 a

30 Ibid. 3

721 Cranch 137, : ‘i ed. 60 (1803).

“By ‘the constitution of the: United’ States, the ie

president _ is © "invested with certain. important —

‘politieal powers, in- thc exercise of which he is to

use his own discretion, and js accountable only to

his untry in his political character, and to his.

conscienge. . _ Whatever opinion may be enter-

tained: of the manner in which executive discr@- ”

vy tion may, be used; still there exists, and ‘can “exist,

~ no.power to-coritrot that-discretion. . The subjects

ere political: they respect thé nation, not indi-

vidual rights, and being entrusted tq, the execu-

J tive, the decision of the — is onciaave.”

is That, the indie of | our foreign ‘relations is a polttical

| * + Mhatter within the control of the executive is clearly estab-

lished by the decisions of this Court? ‘Thus, in Octjen t v.

Central. Leather: Company, the: Court aac".

“The conduct of the foreign relations. of our

Government is committed. by the Constitution to |

‘the executive and législative—‘the " political’—de-

partments of ‘the government and—the—propriety

of: what may~be done in the exercise of this

political power is not- — to judicial inquiry

ec or decision . . "sp SRS ese Fig ¢

“12 Dakota Cent. Telephone Co. v. ‘State’ of, South’ Dakota, 250 US 163, .

39 S. Ct. 507, 63 L. ed.-.910 (1919): Fok Young Yo v.: United

States, 185 us 296, 22 S. Ct.-686, 46 L. ed. 917 (1902);- Doe, ex

_ dem. Clark, et al. v. Braden, 16 How. 635, 14 L. ed. 1090 (41853); <

$2 = States v. Palmer, 3 Wheat. 610, 4 L. ed. 471 (1818); Foster

lam v. Neilson, 2 Pet. 253, 7 L. ed.-415 (1829); Jones. .

: th ited States, 137 US 202, He . Ct. 80, 34 L.. ed, 691 (18909 ;

- Wnderhill v. Hernandez, 168 250, 18 8. eo 83, .42 L. ed. 456

(1897); ga ag Trust Co. of ¥. v. United States, 304 US

: 126, 58'S. Ct. 785, 82 L: “éd. 1224 (1988); Kiyeshi Hirabayashi

.’° v. United States, 320 US 81, 63 S. Ct. 1375, 87 L. ed. 1774 (1943); a

en op a v. National ity “ee of N. -Y.,.69 F2d (GCA . ‘

23 Oetien v. Central Leather Go # “248 us. 297; 28 4 Ct. 309, 62 L. acd

ra (1918);

mee

% ~~, . 30 :

‘ ‘ 4 S Pa b

: “ae

: In United Stites Vv: , Curtiss-Wright Export Seperation,

_ supra! there was anattack upon a joint resolution of-

" "Congress authorizing the. President to Gocire an embargo

aN the Grand Chaco, Sspate i inhi in his judgment. the ebara® |

"would proniote peace. . . Curtiss-Wright, convicted.

violation of the embargo ‘proclaimed by the President, N

* . tacked the. tesolution as an” invaiid. delegation of legis-

XA lative power since it set up no adequate ‘standard to

Ei ge guide the President in. his decision to proclaim the em-

~~ bargo: The Coyrt affirmed the conviction, saying that

_ the President's | power in the field of international relations *

derived from his position | as: Executive exercising the-

-—Sovereign functions. of a state in its external relations,

. and indicated that the President could have prohibited eee

export of arms. and munitions’. ‘to the Chaco eVen in ‘the |

. asence of the joint resolution, It said: ;

| ae

o---_

“Not only,.,. as ‘we have ‘indie is’ the federal

power over external affairs in origin and essen-

tial character different from -that over internal

. affairs, bi , participation. in: the exercise of the

_ power is ‘significantly limited. In this vastexternal~

realm, with its important, complicated, delicate

_ and manifold problems, the President alone has the

power to speak or listen as a representative of the

~nation: He makes treaties with the advice arid .

consent of ‘the. Senate; but he alone negotiates.

‘Into the field of negotiations the Senate. cannot

intrude; and: Congress ifself is powerléss to invade _

7 As Marshall said in his great” —— of

ee United States y. ‘Curtiss-Wright Export ne : See also”

United States v. Belmont, 301 U. S. 324, 57 iy P78, 81 L. ed."

1134; United oe” ¥. Pink, 3165 US 208, 22S. Ct. 552, 86 L |

od. "708 (1968

‘

: 3 31

March 7, 1800, in the House of Representatives,

. ‘The President is the sole’organ of the nation in.

, its external Telations, and its sole representative.

7 ——with foreign nations’: Annals, 6th. Cong. Col: 613.

The Senate Committee on Foreign Relations ata

‘. -very early day in our history (February 15, 1816),

reported to the Senate, — other — as-

follows:

_ “The. President is the coristitutional repre-

sentative of the United States with» regard to

foreign nations. He manages our concerns with

foreign nations and must. necessarily be most

competent to determine when, how, and upon .

what: subjects. negotiation may be’ urged with ~

' the greatest prospect of success. For his con-

duct. he is responsible to. the Constitution. The’

_ committee considers fhis responsibility ‘the

'- surest pledge for the faithful discharge of his

duty> They think the interference of the Sen-

‘ate in the direction of foreign negotiations calcu-

lated to diminish that responsibility and thereby _..

. to impair the best security for the national

\ safety. - The nature of transactions with foreign .

- of eel moreover, requires caution and unity

, and their success frequently depends

on 'secrecy and dispatch.’ 8 U. S. Sen. Reports, —

Comm. on Foreign Relations, -p. 24..

“It is important té bear in mind that we are

here dealing not alone with an authority vested ~

in the President By~an exertiorf of legislative

power, but with such an’ authority. plus the very

. delicate, plenary and exclusive. power of the

_ President as-the sole organ of the federal guvérn-

ment in the field of international telations—a

power which does not require as a basis for its’

32 ° . . \

exercise an act of Congress, ‘but which, of course,

like every other governmental power, must’ be

_ exercised’ in subordination to the applicable pro-

visions of: the Constitution. It is quite apparent

Oe he ene ur-international ——*—

relations, embarrarsment—perhaps serious em- _

barrassment—is tc be avoided and success for our

. aims achieved; congressional législation which is

- to be made effective through negotiation and in-

quiry within the international -field must often

accord to the. President -a degree of discretion

and freedom from statutory restriction which

would not be admissible were domestic affairs

alone involved. “Moreover, he, not Congress, has

the better opportunity. of knowing the conditions

which prevail in foreign countries, and especially

is this true in time of war. He has his confiden-

tial sources of information. He has his agents in .*

the form of diplomatic, consular and other offi- -

cials. Secrecy in respect.of information gathered

by them may be highly. necessary, and the pre-

_ mature disclosure of it productive of harmful re-

sults. ‘Indeed, so clearly is this true-that the. first

President refused to accede to # ‘request to lay

before the House of Representatives the instruc-

‘tions, correspondence and documents relating to .

the negotiation of the Jay Treaty—a refusal. the

wisdom of which. was recognized by the House. .

itself and has never since been’ doubted. . so <n

“In the instant cxse.we too ‘re dealing with “the

very delicate, plenary and exclusive power of the Presi- .

dent as e sole organ of the federal government in the

fiel¢ of ‘international relations—a power whicfi does not .

require asa basis for its exercise an act of Congress,”

33 Vigoss

- As ‘in .the cited case, the » Propident's action here is not -

subject to judicial review: en

rf enka

eS eae ee Sere Seies of °

Waterman takes the position that the* Court is s asked to

review the order of the Board, not the President. C. & S. |

has attempted to show that the order granting a certificate

- for: foreign and ‘overseas ’ air transportation is actually

the order’ of the President, agd-that the Board acts merely anes

7 in an advisory capacity.”

The court bitew conceded that the President’s ection

was not-subject to review and that it was not necessary

however, that the conclusions of the Board,could be in-

- dependent of the President’s action and that the decision

of the, Board in its pristine state could be reviewed-be-

fore the President took action upon it. :

it,

Cel lie lath tai inl ot

- the Board could be dissociated as an entity from that of

the President. The machinery of Section 801 makes this.

10 See algo the Luthorition showing the inability of the court io enjoin

& F Assets Realization Hull, 31 ei

eS me, hae ,

a legal i a ‘practical impossibility. That Section re-

- quires that copies of all applications for foreign and over-

“seas, transportation be submitted to the President before

hearing thereon, and prohibits the Board from publishing

' decisions thereon until after they ‘have been submitted

to the President for his approval. The decision thus pub;

lished, therefore, ' is. not the ‘Board’s pure self-generating «|

‘strain but the product of sa eapase: between the wees :

; and the President. ‘ee a :

"In the .case of Additional Service to Latin America, for

example, the action of the President brought about four:

changes’ in the Board’s decision, 2 a. has been pointed out.”

For example, the Board recommended . hat Pan American

be given. a, route between Los Angel ) and Mexico. City.

According’ .to the ° Statement contained in the Board’s

; opinion, the President ‘considered it'a visable to award

this route to Western Airlines.” There was no public. ‘i

explanation of the President’s action. Shi Section 801 —

requires that the’ decisions of the Board be: eommunicated

to the President before publication,,. the decision ofthe

—

ee Board to. award the route to Pan American was made

_ » known to ‘the President. before the ‘order granting - -the

routé was awarded. , The President demanded the change,

“and accordingly, when the decision of the Bi was pub-

. abate

77 In deusiginion with lees 7 the Board’s opinion. contains be

fs following statement: “. . . Pursuant to that section [801], the

Board submitted its opinion and order and certificate 3 in the

_ present "préceeding to the President of.the United States. The

President, acting in accordance with his statutory authority under

Section 801 of he Aeronautics Act. has advised the Board

that because of cértain factors relating to dur broad national

welfare and oth

as responsibility, he has reathed conclusions which trenuire

oi R15, 110, 1 ‘ pgaanaceenal in the Board’s opinion: . . .” -R. 125.

thatters for which the Chief Executive has — - ;

35.

lished and the order rendered, the route was awarded to

Western Airlines. Assuming that Pan American wished.

- to contest the award, it would clearly ‘be asking for a re-

__ view of the: President’s and not the Board’s decision since.

the Board’s recommendation v was in : Pan American’ s favor.

. How aioe of the final decision is ‘the decision of the

‘to dete ine. It.is impossible to know. whether the choice

of C. & S. was primarily dictated ‘by the Board, which

' .took into account economic considerations,.or by the Presi-

dent, who took into account political considerations, or, -

as must be generally the case, the result of mutual dis-

cussion. and the weighing of the combined factors. Under .

such circumstances, the action of the Board cannot be dis-

sociated fiom that of the President, and the review of one

necessarily entails the review of. the other. |

. Peértinent here is the application to this case of the

Bermuda agreement | entered into between. the United

States, acting through our State Department, and Great

Britain, in February 1946. ‘A segment of the route here

under discussion was outlined in the agreement as a route

States was to. designate the specific carrier to serve this

_* route. '. Accordingly, the British. ent has been:

‘notified that C. & S. is the United States carrier desig-

nated for this route un the Bermuda Agreement, _

7? Rote 11, Part B of Annex No. 3 provides that a ‘United States

‘carrier "shall serve a route between New Orleans and Houston and

ee ‘I 08, 128. Jamaica, br igo and South America. - 1946 US

‘ IK 4 a

‘to be served by a United States air carrier.” The United

Assuming that the court below has the power to review

the decision awarding the certificate to C. & S., there is

| doubt that the Board alone on remand or the court on re-

view could. require the issuance of the certificate to-a

+ exerier other than €.'& S. in view. of Section’ 1102, witch

requires - that the Board ‘act consistently’ with any agree- .

ment in force between the United States and any foreign

country.

E.. Review of . the Board’: ~ daieleleis praneens no case or

controversy.

Assuming that the action of the Board can bé dissociated

_. from the decisi é-et the President, the so-called order of

action of the Board is’not final and,. anpiene, presents’ no

, case or. controversy.

The action on n en applics*ion for foreign air ‘transporta-

tion is not complete inthe sense that certificate may _

issue before the. President has acted. ‘ Re iew of an ath t

re-

leading: up to the President’ s action, whether it

view -of an examiner’s report or of the Board’s. Tecom-

mendations, would mérely result in ah peony opinion. . ay

Article III, Sec. 2 of the Constitution extends the judicial

" power’ only to. “cases” arid “controversies”. The ‘Court

ie constitutional court posséssing only. judicial powers.*”’

“Its function is restrieted to adjudication of final decisions

90 Ex. parte Bakelite Corps 10 US_498, 49-8. Ct. Ait; 73 L. ‘ed. 789

“~~ (828); iY amen Tie nited States. 289 US 516. 83 S. Ct. 740, .

the Board would not. be subject :to review. ‘because the |.

Al L. 1356 (1932) ; Od Col-ny Trust Co. v. Comm’ r, 279 us:

“716, 49 5S. Cty

co 73 L. dasecad Hanessoe ie

73nd “

in controverted matters. It does not ave the power to-

-render advisory opiriions. -

The logic behind this judicial abstention is carefully

set forth in one-of the last opinions of Chief J ustice Taney

in Gordon v. United States. - The question was whether

the Court had power. to review a decision: of the Court of

Claims under the Court of Claims Act. Sec. 14-of that act *

‘provided that no money should be paid out of the Treas- :

‘ ury for-any claims allowed by the Court of Claims until

the Secretary of.the. ‘Treasury should. have approved the

payment and Congress should have maae an ‘appropriatign

for it. ‘Thus the Court of Claims had no.power to enforce :

“its: judgments. The Secretary of the Treasury and Con-

gress had to approve its findings, the same as the P 'resi-

dent here has to approve. the decisions of the Board on

foreign and overseas certificates.

The Goidon case was argued twice and Chief Justice» ’

. Taney. died between the two hearings. Before his death,

he had written an opinion 6n’the first argument. The

official and final : ‘opinion * of the court. was delivered by

thé then. Chief: J ustice Chase, but reference was made: to

Chief Justice tie reasoning and his opinion ‘was re-

‘Printed in full

81 Saveera’. Case, 2 Dall.

561, 17. L. ed. 921 (1865) a

148 US 222, 1% 8S. Cé 577, 37

United),States —. - 346, 31 Sj Ct. 250,.55 L. ed. 246 (1911);

Baltimore & R. Co. v.

-859 (1934) District of

46 L. ed. 85 (1901).

of Socia ‘Stiencen . 475, 478. ‘ Ber

lumbia v. Eslin, 183 US 22 S. Ct..1

215 US 216, 30 wt Ct. i. B4 Led. 184 (1909) : Uni 1 States ¥.

_ Jefferson jHiectss ce Mfg. nS 291 US 386, 54 S. Ct. , 3, 78 L. ed.

"2 Wall. 661, 17 L. ed. 921 "(4868). (Ro Se 5 alee 7a aie

- > po

en eer yc a at ES NG

ry —

the Appendix of a later ‘volume of re-

fae L. ed. 436 (1792); ‘Ferreira’s. Case,- ;

13 How. 40, 14 L, ed. “2 1851); Gordon v: United States, 2. Wall.

$'697, appendix; In re Sanborn, °

. ed. 429 (1893); Muskrat v.°

also. “Advisory. — ns,” Sncyclepadie

OR. 412

38°

4 .

'- ports.* "As pointed’out there the Court. cannot express

“an opinion “where its judgment would not be final and

conclusive upon the rights of the Parties mS. ee

power conferred on this court is. exclusively judicial, and

it cannot be ere or authorized to exercise any othef.”* _

The Gordon case is "factually similar im two earlier _

cases, Férreira’s case and Hayburn’s- ease,*" both of

which involved’ statutes by the provisions of which the,

action of* the court ‘was Subject to acceptance - by an

administrative official. In both cases, the Court refused

. been taken in numerqus cases following the: Gordon .

case."

<¥

es Power Commission ». Pacific: Power & ‘Light s

- Company *-is relied on by Waterman in oppdsing the con-

tention that no case or controversy is presented.. Water-

‘man’ s reply presupposes that the “case or controversy”

question: goes off on’ the right of the court’ to enforce its | ;

decision. If this were: the .only test, then’ clearly the

court below was correct in pointing’ out that, “Courts

: try criminal ‘cases notwithstanding an‘ executive pardon

_* may frustrate a conviction.. They constantly reach con- -’,

clusions in all kinds of cases undeterred by the. chance:

beeral a higher court may disapprove their cncers. 1%

» ee

* 88 117 US o, appendix.

mt ore 702. mee babs

8.Ibid, p. 699. Aa

8613 How.-40, 14. ae a (1851).

872 Dall. .409,.1 L. ed. 436. (1792).

88 In re Sanborn, 148 US 222, 13 S. Ct. 577, 37 L. ed. 429 0M ;

“United States v. Jefferson Electric Mfg. Co., 291. US rte 648

. 443, ‘78 L..ed. 850 ( 1934). See also note 81, supra. — :

89 307 ue 156, 59 S. Ca 766, 83 L.-ed. 1180 (1939). Pra Ae Sy

\ e am

“But, it is s submitted. that- the test for the determination

of the existence of a. case or controversy is not whether

the decision or the action ‘the court is. asked to review is

enforcible by the reviewing court itself, but whether it ;

- is enforcible in its then existing form. by any, court,.-

agency, body or tribunal. In° other words, tae matter,

_ when ‘presented to the court, must have matured into .

‘ ‘ finality, even though the finality be relative and subject

| to: conditions subsequent such as judicial review, executive -

pardon and the like. te Sheu

Thus, in the Federal Power «Commission case, the Com-

mission had definitely announced that it would not grant |

permission for the. merger sought: by the plaintiffs. If no

-review had been taken from. that order it woald have -

been final and conclusive under the statute controlling the :

‘case.’ Likewise, when a ‘criminal court renders a judg- .

ment condemning a defendant; that judgment is final and

exigible’ at that’ stage, and if no appéal is taken and no

pardon granted, it will be executed. . ;

Here, the Board does ao Sai: the. power under the.

~ statute to render: a decision which is independently virile -

_.and conclusive. . No certificate: can issue without supple-

.mentary action, by. ‘the President. His action. is a con: .

dition precedent to the Realty of the order. ‘Tt is not

elective; it is mandatory.

“The decision of the Board alone does ‘not eee a-case

or controversy because it is not a -final decision | in ite

sense that the Board's action alone is sek a complete

action which could le d ‘to an enforcible result.

: . . : PA :

a oe

io ewe ETO oe

’

athglaranerepelin nang UnNTeERANENnS Rea

ey eC eee

‘

F. Section 1006 (a) must be interpreted to preclude re-

view of.orders for foreign and. overseas, transporta-

a ee vise ae ® aa : a .

In interpreting Section. 1006(a), attention is called to

the original draft of that section, which read: a be

i's “Any order, affirmative or negative, issued by

-thé Authority under this Act except an order in

respect of foreign air transportation approved by

‘the Presidefit as provided in gection 801 of this’

- Act, shall be subject ‘to review , RC .

This. draft Ws discarded and the section as s adopted is. :

as follows: | I ion ae =f . .

at “Any order. . =... except,an order in ‘yéspect of aang

‘ foreign . air :

-President as provided in Section 801 : a 3 oe

be subj t to review aA : os

‘From a pmparison - this: original. draft with that.

which was finally passed, the court below concluded thatit. -

was the deliberate intention of. Congress ‘that certificates of

foreign and overseas. air transportation | be omitted from

the exc@tion. contained in Section 1006(a).-C. & S. sub- |

mits that this conclusion does not —: follow. -

‘ ge:

There was an ‘in: “defect in the first draft of the :

section. ~ The exception only * extended to orders “ap-

" proved” by the President. This meant that. the orders of —

the Board under Section 801 could be reviewed before

. ‘they were ‘presented: to the President: or-that if.the Presi- ..

+ — dent disapproved of an order of the Board, the Board’s

“ 5 aie e

-@«

° : =

; ; : ‘ :

\ e .

) e *. : .

. Pee z a .

“¢

- order would an subject to review. For reasons s that need :

no repetition here, neither of these two results was in-

tended by Congress. It is, therefore, ‘reasonable to con- *

clude that. Congress recognized the deficiencies . in the o

original draft and, in an attempt. to correct ‘them, became ~

enmeshed in a grammatical ‘construction that produced .

still another’ defect which escaped congressional notice.

‘The real. reason * for the change in the: provision is not

determinative here... ;

Although section 1006(a) attempts to confer jurisdiction :

upon the court to review .“any order” of the Board, the —

, phrase ‘any order” must not be taker literally. Tke courts

will certainly. not review orders of the Board promulgat-

ing rules. of practice. ini its hearings except as those rules

~ May’ be incident to other matters before the. Board, nor

* is ‘it .contemplated’ that the courts will review interlocu-

tory orders.*? Accordingly, it- appears that ‘orders involv- —

° ~ ing foreign air ‘carriers -are not the only orders =

" from 1 review.

Since t):2 exception in: 1006 (a): is not exclusive it would

net do violence to - provision to extend the exception i A a)

oo 91 “Suecess: ve: drafts of a “statute. are not. stages in its development.

-. They ate separate things. of which we can only say that they —

follow each other in a definite sequence and that one was ‘not.

the other, But that fact gives us little information about the .

. final form, since we really never know why one gavg way: to any

-other-. There are doubtless many reasons, some of them _likelv

enous-h. to be personal, arbitrary and cxpricious—the fgndness of °

the craftsman fora special locution, his repugnance to another,

a misconception of the association of some word, a chance com-. .

bination and! often enouch a mere inadvertence. ” “Statutory In-

terpretation”; by Max Radin, 43 Harvard: Law Review, 863, 873 -

(1930).

_ $28 Féderal Power. Commission v. Metronolitan Edison Co.,°304 US 375,

58 S. Ct. 963. 82 L. ed. 1408 (1938): Mallory Coal Co. v., Coal

Comantatien, 99 F2d (CCA, a 399.

i tee ? ih

é' , b

;

commutiatamommmvnet:

ae ug ey

. <A : }

. —— e 2 rap : ; r te

a * ies 6 ‘ tee Hs 4 ; 2

Ages “ suena ne

; i\ oy o he ae : Be oe ps / Saas Page

“Pan ‘ila Airways Co v. Civil Aeronautics wa ss

121 B, 2d 810 (C. Ca A. 3, 1941)...-00... is otis ay

‘ ‘Saginaw Br Co. v. Federal Communications" oe

_~ Commission, ‘96. . 2d 5545, 558 (App. Ct. D. C.. .

SD OKA aad KS 66 CboeRE Eee ORb ear oeks Lexa es MD oq

“— Nawal idaho Cent. B. R. Co., 306 U. 8. 177 5 ‘ 4

Cre ES | RNase Se SORES et Pee Le: oe

' . State of Wyoming v. Franke, 58 Fed. Supp. 390 a) nH:

; see “sige v. Abilene & Sou. Ry. Co., 265 U.S soon ae

S TOE 6h wkk ad hob ee bck tho Cis h nase aac 11.

* TLS, y: Fox River Butter Go. (i988) anit Cust. Pat. cl

_. Waterman Steamshi ip Corporation v. Civil Keronautics ee 4

‘828 (R. 407) ag C. A. 5, 1947)... To)

- Board, 159 F. 2

William | ‘A. Foster & Co., Inc, v. U. S. (1882) - Ct. de

a a oe gp. IB vie eeceety, eee seeeeteee HT |

STATUTES CITED.

: _ Civil. eveaiitie Act of: "1938, Act of June 23, 1938, e - ~ -

601, 52- Stat. 97, 54 Stat. 1233, 54 Stat. 1235 (49 aaa,

2. SOOM MS ae ee

Merchant Marine ‘Act of 1936, .49 Stat. 1985, ch. 858, ..

re eres June 29, 1936 (U. Ss. : Title 46, sec oe

OR MOD) ve eeieeeeene rete einer 13

i : : & : ae : | : “eh :

2 y : | 5 ‘ ‘ } : |

| 2 ¥ ; of : e

Scan cam se

E “s | ; P

fo : ree

i¢

3 a Se OOhrs t

4 Bilis .|

nemo States 24

; Prati seine

f—~

ee i340 aoe bs

7 F . . . ;

Sa . 4 - sf -@

pa ee ee MR Pe

a : sae oc Ph én ’ ny

. ¢ : 5 ps ‘ Caeue 69-7

oy CIvin AERONAUTICS Boanp, Pétitioners,

ne . ¢ RY Ss : Saeed .

. ; e ‘ . ; Vs,

of 8 i

be! f we - 3 we os

Sas »'

| Warermgx Se ereren resi: he

‘ On Petitions for « Writ of Cortiorari to the United States

te eth SEI te Oe ES Sete.

——

BRIEF OF ‘RESPONDENT IN OP > BITTON: TO PETI

~ | TIONS FOR 4 WRIT OF GERTIORARI:

om bee * gemmoxs » DW. |

os et i ree ee:

">" The, opinion of the court below is reported in 159 F. 2d --

838 (R. 407). The jopi én of the Civil, Aeronautics Board

i’ which ig the subjec of this apheel i i — in 6. C. - B.

85 (RE16), Ph eee Ke [fee AY es sf

ED. oe °

“4 , Whether. the petitions present substantial questions ‘0

". general importance that shduld ‘settled’ by. this =

‘Both petitioners: présent the question ‘of wnetnee an order

1 2 ex ~ . ake Ms ee A

eee a a

ie “QuESTION

‘Oprosen Tena, 1946, seats spate ae oS.

“p *-@ “

‘,

“59S * The position taken by €

-* are thject to the President's approval: to.

‘settled rule of construction that a: statute must be con-

“strued-so ‘as to give effect to its. — ‘and intent res.

__gardless . of the language ‘employed"*\, Equally pertinent —

is, the rule that an “uunepnstitytional interpretation of -a

statute will bé avoided. va These rete uaa a literal

_ construction, here.’ -- iui Vie ,

Sy a! a

ety a. literal teniiog Section 1006(a) would allow

fee review of all orders except ' ‘those relating to foreign. air -

carriers: As hds been demonstrated such ‘an interpreta-

tion would place the courts’ in the position of reviewing .

the: ‘President in the-exercise of his constitutional powers. ee

“- and. of entertaining matters not in “case’ or’ controversy”.

. 3 must’ be assumed that Congress: did. not pass an uncon-.

“-stitutional provision: and that: Section. Agnes) is ——

-tible of. other, ; interpretation, eee

” 9 * Mihar, et al. v. Ciibell;. 326 US464,.66 S. we T93, 20 L. ed. 165

«ey: United States % N. E. Rosenblum Truck ‘Lines, 315 US .

50, 62 S. Ct. 445, 86 L. ed. 671.(1942); United States v. American

"Roping Associations, 310 US 534, 60 S. Ct. 1059, 84 Le. _éd, 1345

a: 94 Daited States v. ia Fuey: Moy, 241 US 394, 36 S. Ct: "658, 6. ed.

‘ 1061 (1916)... ~*

S. is ‘supported b ‘Pan-American An

’ ways v. Civil am by, 6. & ‘Board, 121 F2d (CCA 21941). 810,; and

Pacific Overseas Airlines Corp. v. Civil Aeronautics oard::.161.

F2d (CCA DC;1946) 633, to- which the court below djd not adhere.

In the Pan-American case the court said:

“It seems clear that in approving or: disapproving: of “eertifi-__

cates of public convenience and \necessity the: President” must fre-

quently act on information which was not before the Board and.

./miay even have become available to hirn after the Board has taken’

its testimony and granted the certificates. .‘There is nothing in

the’ Act to sNow that in granting certificates of public convenjence -

‘ and necessity the Board is acting as anything more than, the

President’s adviser. His necessary approval or dis:ipproval makes --

him, ‘not the Board, the uitimate arbiter.. United States vs.

', George S. Bush & ‘Company, 310 U. §. 371, 60 8. Ct. 944, 84 L. *

ed. 1259...

a the President. has approved of a certificate authorizing a.

carrier! to engage in foreign air. transportation and we should >

attempt to review the order authorizing the issuance of the certifi-

‘ 4 ghee i : : %e : 2

» ¢ i . Ne : x , + os ‘

. * ; Rin

: ‘je . ‘ Ps : :, « ‘»

. e

"WATERMAN HAS LOST ANY RIGHT TO REVIEW BY

TARDY APPLICATION.

The Rules of the Board provide: ™

rot

“No petition for ‘rehearing, reargument, | or re-

- consideration filed in accordance with this Sec

tion, or- the granting thereof, shall operate _ asa.

- stay of the effective date of the final order sought . +

to be modified or vacated by such petition, unless

specifically so 0 ordered by the Board. id

‘The reason for iis rulé ‘is plain. Certificates of public

decline to approve. ‘His sweeping powers are illustra by the -

. cases, where the -constitutional authority .of' the President*to nego-.

" eate; we wid be placed in a position. ‘weet we might be obliged

convenience and » necessity are awarded to ‘fill’ special .

needs. In a great many instances, the need is a matter

of emergency.”’ It is, therefore advisable, if not impera-

x ., tive, that the legal delays requisite to-due process be cut

toa minimum to ‘assure. the public the earliest possible

-teverse a tribunal ywhose subsequent action the Presi “would”

fact that under. ion 801 he is o liged not only. to approve ‘or

peng ‘of a certificate for foreign air bp gp t even

Ben anes or disapprove of the- denial ‘of suc a certificate by the

i Bos

It seems incredible that. in enacting retio “1006(a) Con-

gress jntended to permit a review of the actiopof the Board in

tiate with foreign nations and to proceed upon confidential and

other information at his disposal his statutory duty under

Section 801 to approve or di; ve of certificates, and even of

the denial of ‘them, wouldnecessarily render = ‘review —

United States v. Belmont, 301 U..S. 324,57 8. ee 81 L.

1134; United: nates v. Curtiss Wright. Corp.; "299 U. 304, 57 *¢

Ct. 216, 81 'L. 255. - The review of the order authorizing. thé

isspance of ‘th certifica so dependent upon considerations

resting in the Ricccutive art ot

- authorized by Section .1006(a) .

6 See R. 1344: -

97 Plaintiff has, in a: Iter. proteeding bifére the Board, alleged: that

an emergency exists in this particblar case by reason of the

critical need fora scheduled air service from: Puerto Rico to the

| United States, °- Sg Aiea ivelat

i o sk 3

iS a se

‘ ’ . .

6 ‘ © e

_ that. at cannot be regarded as

“re

44.

serviep. 4 is cialis that the ‘einai of service

might be endlessly postponed. by the dilatory tactics of an

: opponent to. an award.** To avoid that sort of thing- the

o> Board enacted the above ee

The Board ad” the power to make such ian. under —

_ + Section 1005 of the Act.” Petitiorier had no vested right

to a rehearing. The Court has said:

* -— “Rehearings and new trials are. not essential to. .

‘due process: of law, either in judicial or én ad-

, ministrative proceedings.” >

In United States v. Abilene & S. RR. Co,, the Court

had occasion to interpret Section 16(a) of the Interstate

‘Commerce Act which is analogous to the regulations.

provided here by. the Board. Section 16(a) provided (and

the section, of course, was a congressional fiat rather —

than .an. administrative. one) -t order of the Inter-

state’ Commerce ——— would not

application for éehearing unless the Commissio

stayed the action. The Court recognized that Congress

had the power to enact ‘such provision and that in the

“absence of a special stay by the Commission, an applica-

tion for rehearing would ‘not suspend the running of time —

within which a litigant had to apply for review of an

.. order of the Comnmaionton,

os Here Wahaus had already filed'a motion to. ~y and reconsider

the case after the Examiner’s report had been filed. This motion

was denied on May 17,. 2946. ° Waterman then filed. and —_—

. tion for we based: ‘on similar grounds,

noth Supra, pp. 12 & 13.

- OP, C.-C, andSt. L. R. Co. v.. Backus, 154 US 421, 14 S. Ct. 1114,

‘ 1117, 38 ‘L. ed. 1031 (1894).

‘ 101 265 US 274, 44 S. Ct. 565, 68, L. ed. 1016 .(1924).

yt - i \

—

ere

. aki. = A *

——— < ~ ee ALG Deb = ae

’ . e >. .

"Tt follows from that decision that if Congress ‘could pro-

. the action of the Commission without a special order of —

, that body, then Congress could delegate that same power

to the Board here. For actually, if the ‘Commission is _

‘left with the discretion as to whether or not a particular —

order’ should be stayed, then the Board is acting within —

its proper province when ‘it makes-a regulation to the . -

same effect in the absence of a prohibition by ‘Congress. :

_ Especially is this true since Congress has given the Board

/ general cen to make rules under Section 1005, of the

Since the regulations are valid, Waterman was ‘bound

by them.. Moreover, the order denying Waterman’s apn.

plication and granting a certificate to the C. & S. was

served on Waterman May 24, 1946. No special order was

* °

. rendered by the Board tolling the delay following” the

- rendition of the order and the service'on Waterman: In.

fact, no application was-made by Waterman for such an

order. The petition for review was filed in the court below _

on September 6, 1946, clearly ‘beyond the sixty-day: statu-~

tory. period. No application -for leave to file after that

date was made; no leave was granted.

Waterman cites Braniff v. Civil Aeronautics Board

~ in support of its contention that its petition for rehearing _

tolled the running of the sixty-day period. It is respect-

fully tted that the Braniff decision is incorrect.

_ It is in conflict with the holding of this Court in Leders —

102 147 F2d (CCA DC-1945): 152.

4 ‘Anderson ™ and U. S. v: Abilene a SS Railroad. Com- .

pany.1% Moreover, the case ‘of Southland Industries v.

. Federal Communications Commission 18 cited to. support |

. the conclusion of the court in the. Braniff case, does ee

_ do so. The Southland case involved the right of an un-

* successful litigant before - the Federal Communications

n, to file a petition for review while a petition

for rehearing was, still pending before the Commission.

a court decided that _the Commission had not relin-

_quished jurisdiction in view of the a provisions of”

Section 405 “of- i and_ its legis-

- ‘lative ‘history. ‘ The court was ae to point out that.

the result would have. been different had the review

been from the Court of Claims, for there special regula-

tions governing the effect -of applications for. rehearing

would govern. Similarly, the rules of the Board here,

_ and have the same force as ‘the special rules of any

- tribunal, administrative or juca.

Asa matter of fact, Wateesniat s petition for rehearing .

"was denied, on July 12, i946; within time for Waterman

. to have filed a petition for review within sixty days from

-” May 24, 1946,- the. date Water "was served. with the é

ee under - attack here.

It is submitted that. Waterman had sixty hive from: a

24, 1946, within. which to apply for a petition for-review.

. Waterman failed to apply. within the sixty-day: ‘period,

- failed to make any showing why the sixty-day period , :

103 326 US 219, 66 S. Ct. 72, 90 L. ed. 26. (1948).

* °

104 Supra, note 101.

_ 10599 F2d (CCA DC- — 117;

ace view, therefore, 1s tardy a and should be dismissed.

_—~ dismissed.

7 4

ues should be extended, and failed - to apply for or obtain Deed

_ special leave of court to file its petition of review after

the sixty-day period had -elapsed. ‘ This petition for ie

CONCLUSION.

It is csapactbally gubinitted that: the ein | below

‘should be reversed and Watérman’s petition for review ?

Respectfully submitted,

-R. EMMETT KERRIGAN,

* . R, S. MAURER,

ee _..- , Attorneys for Chicago and

Southern Air Lines, Inc.

~ Of Counsel: eae Pee rent:

“MARIAN MAYER,

a DEUTSCH, KERRIGAN & STILES. rere ae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.