# Petition for Writ of Certiorari — Chicago & Southern Air Lines, Inc. v. Waterman SS Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0306%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1948 - **Citation:** 333 U.S. 103 ## 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: 4} 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. oe 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 5 ‘ ‘ ‘ 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-_ ——— =- “@ - © Docket 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 od 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: 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- - *- mY A 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 -© » Lo , «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- eee ‘uminous-record if’ that court. has no jurisdietion ye & . " 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. ; a ® . ’ . 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 g FILE cory . Olle ~ Suprsine Qowrt, Us &: FILaD N OV 3 io CPARLES LscrE chiowury | . SLEeax “ , _ Supreme Court of the. ius d. ‘ ; : x ‘ e OCTOBER. TERM, 1947; AICS te ‘ — : ae 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, iS 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 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) . : m1 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 mm 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 ea Iv “(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 - ee 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 é | 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 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. e 4 - 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? ; © 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 . .° 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 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 o* 18 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 1 ee p ’ — * President Grant established the precedent. See Corwin, The. Presi- > 23 _° 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 os \ 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 . © See the debates on Section 802. 75th Cong., 3d Sess:, pp. 6853, 6854 $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 26 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.* Ls __._._. $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 8 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); 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 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 ee 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 to exercise its judicial powers. The-same position has © . been taken in numerqus cases following the: Gordon . ~ f. case." ’ athglaranerepelin nang UnNTeERANENnS Rea ey eC eee ‘ ee . os 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 s ‘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 . 4 f “¢ - 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... ; e 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. a Since t):2 exception in: 1006 (a): is not exclusive it would net do violence to - provision to extend the exception i A a) z 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 7 ; commutiatamommmvnet: a ae ug ey . 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 i 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 . 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 s 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 es 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 * ——— . . "Tt follows from that decision that if Congress ‘could pro- vide that an application for rehearing would not stay © . 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, _ expressly applicable to the situation here, «vould control © : _ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0306%3A2. Public record. Not legal advice.