Petition for Writ of Certiorari — CAB v. State Airlines, Inc.

Supreme Court brief1950

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Office - Sup reme Court. By

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oe . JUL 21949:

meetin — ms hasat ELMORE CROPLEY

; | } C11. E Re

IN THE

Supreme Court of the United States

OctToner Term 1949

“No. (159

Piepmont Aviatios, Ine., Petitioner

ORM mer

ODN SE nm

Srate Aides, Ix, Respondent

ae ae

PETITION OF PIEDMONT AVIATION, 1NC., FOR

WRIT OF CERTIORARI TO THE UNITED STATES

* COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT. a

y | Caries H. Merciisos

Attorney for Petitioner, ;

grits " Piedmont Ariation, Inc...) /

Stock Tos, Uruen & Mvrciisos

‘1016 Ring Building

Washington 6, D.C.

Of Counsel

cu un,... PRESS OF Byron S. ADAMS. Wasnineton, DC

Page

PETITION FOR WRIT OF CERTIORARI........ ]

STATEMENT OF THE Matter INVOLVED.............. 1

JvnispictionaL STATEMENT aN y BRR RUN GAAS Oe hae ks 6

Tur Qvestions Presentep ...-..... OVERS re Spr aa

Re ASONS Fox ALLowANcE or THE Wair . ceegsvdenes 4)

BRIEF IN SUP PORT OF PETITION FOR CER.

‘nk he a aeeas Pas ieee CORN nen ne ene wes . al -

SPECIFICATION OF acs Per eNe coe een ree

Summary or ARGUMENT 0.2... 600. c cece cies cece oe &

Point 1. © Piedmont was an applicant for the routes‘

Point IL

Point IIL.

INDEX.

awarded to it. The Board’s finding to

this effect was a finding of fact which

the Court is without power to set aside

The Board clearly has the power to t-

clude in a certificate the obligation to

serve points which the applicant did -not

ask to serve in its written application.

_ It was error for the court below fo rile

NR er Foes: BG aa ive Scam aeue

The Court of Appeals has. erroneously

substituted its own judgment for the

judgment of the Board -by finding that - .

Piedmont is not fit, willing and able to

perform the transportation certificated,

The finding of the Board stood -unchat- -

lenged before the ‘Board, and therefore ‘is

not subject to review. Furthermore, this

is a matter peculiarly within the special-

ized field entrusted to the Board and the .

— ‘of the Board thereon is con-~

clusive-. Bee

Ow 6:86 ee 4S a See ON CS

i Index Continued.

Pave

Pot TV. Should this Court fail to reverse the,

~, order of the Court: of Appeals in its

entirety, said order should at least: be

modified to the extent that it shall pro-

vide, instead of invalidating Piedmont’s

certificate in its entirety, that there be

continued in effect that portion of the

routes as to which Piedmont unquestion-

ably applied and proved its fitness, wil-

linghess and ability ...........0..00i.6.. 26

Comcine@ SS i es casa BAC CRG Sea Rd 28

TABLE OF CASES. CITED,

Aditsaon Vv. Holly Hil Fruit Products, B22 DD, S. 607,

OO Es So; POOR oe OM, See oo oa oe cakes beens 27

Chicago, St. Paul, epg apolis and Omaha R y. Co. Vv.

EB i nited States, 322 my .% hi bare! L.. Ed. 1093, 64 S. Ct .

S42 . 00K aveaa SL PG e oo Pe ee aN ag Ne Ge

North Atlantic Route Case, 6 C.A.B. 319 IBIS te ee 17

North Central Case, 7 CAn MO ee oe 17

Panagra Trrmipal Investigation Case, 4 C.A.B. 670 18

/ Rocky Mountam States Case, 6 C.A-B. 695....2..... 17

( Secukitics and Bs xchange Commission v. Chenery

‘Corp.,, 318 U.S. 86, 87 L. Ed. 626, 63 S. Ct. 454... ... 19

Tow nev. Fistor 245 U. S. 418, 62 L.. Ed. 372, 38S

oe ce BEAD R AO ROS MEN Ee ee ERROR aS Oks Crew c's 16

JR. Grace & Conve € inil he ronautics Board, 154 F.°

ss gees 2b 11.0. kD a Jeb eougerecdaeevnsandeee'ss 18: °

¥ eat CoGat (ee, © OA Pek Li kos vive cs bows vkccwe (18

_'TABLE OF STATUTES CITED.

( ‘ivtl Acronautics Act, of June 23, 1938, c. 601 (52 Stat.

are ff., 49 U.S.C. os Baw ieraere se ater anne 2

Section 401, Certifieate of Publie Convenience and

Necessity, (52 Stat. 987, 49 U.S.C. § 481)

3, 4, 13, 15, 16

tif Cy SOOPINO COMO oo cies i dscsad: 3

(b) Application Tor cortificaté «2.3.00 60,.5...: 552

of aie .

he . v e: =

Index Continued. j Seen

Pave

(ec) Notice of application ............66. Wey CE Ue

{d) Iesuanes of certificate ... 6.3.6 .i ek speee: 2, 21

(f) Terms and conditions: of spice ss

7, 8, 13,'20, 21, 22

Section 416 (b), Exemptions (52 Stat. 1004, 49

CR SS ka hack hes oe 4S eeea ea se es 9, 26°.

Section/M01, Conduct of Proe ceedings (52 Stat. 1017,

49 USC.

WO es ee oe 6

Section 1006, Judicial Revi iew of Board’ s Order s (52

Stat. 1024,

SUSU, FGI A AS 6

CLLR

{ey Findir

(tf) Certifi

ws of fact by Board conclusive....... 6,8

eation or certiorari ee ee a ad aa ie 6

ate ne : fs

Motor Carrier Act of 1935, ¢. 498

(49 Stat. 551 ff., 49 U.S.C. § 306 et seq.).. Pei

Section 207 (a), Issuance of ¢ ‘ertificate (49 Stat. 551, 7

£0 ELS. ST TO) os a ee 21

- Section 2081 ay” Terms and Conditions of Certificate

(49 Stat. Pat 49 U.S.C. §308(a)) .......-000 08 21

2x U. 8. C. § 1254 (See Pub. L. 733, 80th Congress,

bo esr me ae st pays were iE 6

IN THE

Supreme Court of the Anited States

ad ry ‘

_Ocroser Term 1949

~ 2 . Sos

No.

PiepMont Aviation, Ine., Petitioner

agaist -

Srate Airines, Inc., Respondent

ee ee

PETITION OF PIEDMONT AVIATION, INC., FOR

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF PEALS FOR THE. DISTRICT

COLUMBIA CIRCUIT. —

ee ©

To the Honorable Fred M. Vinson, Chief Justice of the

_” United States, and the Assoctate Justices of the

_- Supreme Vourt of the United States

_ The Petitioner, Piedmont Aviation, —Inc.,. respectfully

shows to this Court: :

STATEMENT OF THE MATTER INVOLVED.

_ Petitioner is an air carrier engaged in transporting per-

sons, property and mail by aircraft in the United Stafes.

It “perates pursuant to a certificate of public convenience

and necessity which was issued to it by the Civil Aeronau-

) Mas ae

- P

tics Board on December 12, 1947 under the Civil Aeronau-

ties Act of 1938, as amended (52 Stat. 977 ff., 49 U. S.C.

§§ 401-680). State Airlines, Inc., the Respondent here, was

an unsuccessful applicant before the Civil ~Aeronautics

Board. for the certificate which was issued to the Peti-

~ tioner.?

Section 401(a) of the Act provides that no air carrier

shall engage in any air transportation without holding a

certificate issued by the Board and authorizing such trans-

portation. Sections 401(b) and (c) provide for the filing

of applications for certificates in such form and containing

such information as the Board may require, for the giving

of public notice of such applications, and for-the holding of

hearings thereon. Section 401 (d) provides that the Board

shall issue a certificate authorizing ‘‘thé whole or any part —

of the transportation covered by the application”’ if it finds:

(1) ‘‘that the applicant is fit, willing and abie to perform

such transportation properly’’ , and (2) ‘‘that such=trans-

: portation is required'by the public convenience and neces-

sity.’

Pursuant to section 401( b) of the Act, Wadinent filed an

application with the Board on May 29, 1944. (28-61). This

application requested that Piedmont he awarded a certifi-

-eate authorizing the transportation of passengers, prop-

erty and mail on the numerous specific routes shown in

color on Chart 1, which is inserted opposite this ‘page.

the Board’s order issuing the certificate, the Boatd was_the respon-

dent, and Picdmont; your Petitioner, was an intervenor. In addi- .

tion to the present petition of Piedmont, the Solicitor General is

filing a petition for certiorari on behalf of the Board. Piedmont

urges that both these’ petitions be granted.

In this petition and accompanying brief the Civil ei aailia

Board and its se tage the Ciyil Aeronautics Authority, will be.

called the ‘‘Reard’’. The Civil Aeronauties Act of 1938 (Act of

June 23, 1938, ¢. 601, 52 Stat. 977 ff., 49 U.S. C. §$ 401-680) wilt

be called the het”. Petitioner will be eailed ‘‘Piedmont’’, and

State Airlines, Inc., will be called ‘‘State’’.

All italies are ours‘unless otherwise specified.

Numerical referenees in parentheses refer to pages of the printed -

Record filed with this Court. ;

1In the court below, State was the the Howe na review of

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Qu. Broachvilic of:

. SO. Specific Routes Proposed By

J heme Amendment Dated March 8, 1945

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Study of Chart 1 will reveal that these routes form a com-

prehensive network in the broad area bounded by Wash-

ington, D.C., Norfolk, Wilmington; N.-C., Charleston, S. C.,

Atlanta, Knoxville and Cincinnati. The routes have a total

‘length of 4,965 miles. (43). . :

In addition to rec questing the specific routes shown on

Chart 1, Piedmoyt}s pplication also requested ‘such inod-

ification of such A De as the Board may find publie con-

venience and necessity require”’ and ‘‘such other and fur-_

ther relief, general and speri *, under section 401 [of the

Act] as the Board may deenf appropriaté.)’ (31, 41).

_ By February 24, 1945, numerous other corporations had

' also filed applications for certificates assthori izing air trans-

portation in the southeastern parfof the United States. On

that date the Board entered an ovder which ‘‘consolidated

into one proceeding”’ the application of Piedmont described ah

above, certain applications whi¢l had, been filed by State, 7 Vie

‘and numerous applications by other aby nee proceed-

ing was designated the Southeastern States Sts Cue baa ck

Thereafter, about March 8, 1945, ‘Piedinoitt ed an

amendment to its application. (62-71). Under the amend-

ment Piedmont specifically applied for a certificate authgr-

izing the transportation of passengers, property and mail

on certain routes and the transportation.of property and:

mail on other routes. These routes are Set forth on Chart

2 on the opposite page. Chart 2 shows_that here again

Piedmont specifically applied fora comprehensive network

of air routes.? The routes total 5,763 miles in length, and

cover a broad area bounded by Washington, Noe olk, Wil-

mington, N. C., Charleston, S. C., Atlanta, K eville, and |

Charleston, W. Va. (653, 652). ; :

2 The Court of Appeals in its opinion below’printed a map which

purports to show the routes for which Piedmont specifically applied

~ (676, top map). However, that map tsArroncous because it fatled

to print most of the routes for which Piedmont did specifically .

apply. The true picture is, - yore in Charts 1 and 2 in this pe-

tition. \ ghee :

Ss -

. Piedniont’s application 1 as amended also contained a gen-

eral request for. authority to carry passengers as well as

mail and property ‘‘on the routes described herein,’’ re-

ferring to all the routes described in the appHeation. Sy

- 63).

Furthermore, Picdmont’s application as amended re-

quested “such modification of such routes [refe rring again

to all the routes specified in the applic ation] as the Board

may find public convenience and necessity re quire,” and _

_ such ‘further relief, general-and specific, under section 401

as the Board may deem appropriate.’’ (63, 41).

A hearing was held before an Examiner of the Board

in June 1945. At that time Piedmont, State and 23 other

applicants presented evidence in support of their appliea-

tions. After considering the evidence and hearing argu-

ment, the Board issued its original opinion on Apr il 4, 1947.

(565; 7 C.A.B. 863-941). es,

In its opinion the Boatd found. that the public conveni-

ence and necessity Tequire the ‘transportation of passen-

gers, property and 1 mail on théeroutes shown on Chart 3,

which is inserted opposite this page. (565, at 89: 2-896). A

study of this Chart will show clearly that the routes, se-

lected by the Board are covered by Picdmont’s application. 3

Whereas Piedmont had applied for specific routes extend-

ing for many thousands of miles (and for modification of

these routes as the Board might see fit), the Board found

service required on only 1,700 route miles. The routes se-

lected by the Board cover a smaller area than that which:

Piedmont proposed to serve, and they conform to a sub-

stantial degree with routes proposed by Piedmont.

Tn its opinion of April 4, 1947, the Board made the fol-

lowing additional findings: i

(1) Piedmont was an-applicant to perform the transpor-

tation which the Board had thus found to be required,

(565, at 898, 901). :

(2) Three of the applicants (Gillespie, Blue Grass and

STORES) ‘‘met the test of fitness, willingness

v \

CHART 3.

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PAL INGTON

qumumms ROUTES AUTHORIZED FOR PEDMONT 4/4/47

BOARD AOCOEOC THEBE POINTS 10/13/47

)

and ability’’, but the business interests of those com-

panies were centered in Tennessee, Kentucky and

Ohio, and the public interest would be better served

by awarding a certificate to some one of the other ap--

plicants ‘‘whose activities are conducted i in, and who

have close ties with, the area [North Carolina and

Virginia] embracing a m: iajor portion of the loeal-sys-—

~ tem herein “prescribed. ”” (565, at 899).

(3) Piedmont was fit, willing and able to perform the

_ transportation found required, and was better quali-

fied than State (or any other applicant) to perform ~

such transportation. (565, at 899-902)

After the issuance of this original opinion, State peti-

tioned the Board for reconsideration insofar as the Board

had awarded the route system in question te Piedmont

rather than to State. (566). As requested by this petition,

the Board reopened the case and heard argument on the

points raised by State. (573). On December 12, 1947 the |

Board issued a supplemental opinion and unanimously re-

affirmed its award to Piedmont. (610-620) This supple-

mental opinion expressly reaffirmed the findings made in

the original opinion, including the finding that Piedmont

was in fact an applicant for the routes awarded. (616).

On the same day, December 12, 1947, the Board issued

the certificate of public convenience and necessity to Pied-

mont. Under the terms of the certificate and of the Act

Piedmont commenced airline operations within a_ short

period of time, and is continuing to render service on the

routes awarded it.

A petition for review was filed by State with the U ited

States Court of Appeals for the District of Columbia Cir-

cuit, and Piedmont intervened. On April 6, 1949 that court

‘rendered a devision which would reverse the order of the

Board on the following grounds:

1. Piedmont was not an applicant to perform the trans- .

portation authorized by the certificate. (681)

. The Board was without the power to issue a certificate

to any applicant which did not specifically deseribe in

its applieation, with no more than slight variations,

the exact route system which the Board might find to

be required. (682, 683) - :

3. Piedmont was not fit, willing, and able to render the

transportation which was authorized. (685, 685)

4. The orders.and findings of the Board were ‘‘arbitrary

and eapricious and lacked the support of substantial

evidence.’’ (686)

JURISDICTIONAL STATEMENT.

This Court has jurisdiction to review the judgment and

decree of the United States Court of es by virtue. of

the following statutory provisions: 28 U.S. C. § 1254 (see

Pub. L. 773, 80th Cong., 2nd Sess. ch. 646), and § 1006 (4)

of the Civ il Aeronauties Act of 1938 (92 Stat. 1024; 49 |

ULS.C. § 646 (f)).

THE QUESTIONS PRESENTED.

1. Is it within the power of the Court of Appeals to sub-

stitute its own judgment for the judgment of. the Board as

to whether the transportation authorized by the certificate

was covered by Piedmont’s application?

By Section 1006 (¢) of the Act, the findings of facts by

the Board are made conclusive, if supported by substantial

evidence. By Section 401 (b) of the Act the form of the

application and the information contained therein are such

as the Board may require. By Section 1001 the. Board is -

- anthorized to conduct itsVproceedings in such manner as

will be conducive to the proper dispatch of business and to

the ends of justice.

The Act does not require an application to describe the

authority requested in terms of cities to be served or routes

to be followed. Piedmont’s original application proposed

———

service specifically to at least 23 of the 28 cities found by

the Board to require service in the area under considera-.

tion and, like most of the other applications, requested a

tier: with auch modiGcations * the proposes route

conv enience ‘and sea Srp As ‘siveded, Piedmont’s $ ap-

plication requested even broader operating authority, and

the Board-expressly found that Piedmont was in fact an_

applicant for the routes awarded.

The court below stated that this question (as to whether

Piedmont was an applicant for the routes awarded) was a

- ‘*fundamental question of fact’’. (681) But notwith-

_ standing this statement, the ceurt below erroneously sub-

stituted its own finding for the finding of the Board.

2. If, in fact, a portion of the transportation authorized -

by. the certificate was not covered by Piedmont’s applica-

tion, is the Board for that reason without power under the

. Act to include in the certificate the points not so covered?

The Act provides that upon the appropriate findings, the

- Board shall issue a certificate authorizing ‘‘the whole or

any part of the transportation covered by the application.”’

Nowhere in the Act is there found any provision which pro-

hibits the Board from adding to the certificate the obliga-

tion to serve points not covered by the application. On the

contrary, Section 401 (f) provides that ‘‘there shali be at-

tached to the exercise of the privileges granted by the cer-

* tificate . . . such reasonable terms, conditions and limita- °

tions as the public interest may require’’.

This Court has held, under similar provisions of. the

Motor Carrier Act, that the Interstate Commerce Commis-

sion has clear power to include in a certificate authority

for service substantial’y greater than the carrier had asked,

and to. many points the carrier had not a weg Chicago,

St. Paul, Minneapolis and Omaha Ry. Co. vy. UL 8., 322

U.S. 1. '

- §,,

The Court of Appeals, in its opinion, completely and er-

roneously ignored Section 401 (f ) of the Act and said de-

cision of this Court.

3. When the Board in its expert lias has found that

Piedmont was fit, willing and able to perform the trans-

portation, may that determination be set aside by the Court

_ merely because the evidence offered by Piedmont was not

sufficient, in the judgment of the Court, to show its fitness,

willingness and ability to perform a portion of the trans-

portation which involved operations west of the Appaja-

chians or over mountainous terrain? —

The court below set aside the Board’s finding that Pied-

mont was fit; willing and able to conduct the service au-

thorized. (683-685.) In doing so, the court clearly over-

stepped the bounds of permissible judicial review. |

Piedmont submitted abundant evidence of its fitness, will-

-ingness and ability. Counsel for State, the rival applicant,

of necessity conceded to the Board that Piedmont was fit,

willing and able to conduct the service authorized. (607.)

Section 1006 (e) of the Act provides that no objection to.

an order of the Board shall be considered by the court un-:

less such objection shall have been urged before the Board.

Therefore, it was error for the court below even to consider

the fitness, willingness and ability of Piedmont.

Furthermore, the court’s conclusion to set aside the

Board’s finding was based solely on the substitution of its”

own judgment for that of the Board as to the inferences |

to be drawn from evidence actually in the record. The

court’s previous erroneous finding (that Piedmont was not

an applicant for service west of the Appalachians) was

compounded here by the erroneous finding that Piedmont’s

evidence could not show its fitness, willingness and ability

to operate across the mountains. ,

(

4. If all of the foregoing questions should be decided ad-

versely to Piedmont, should not the judgment of the Court

be a modification of the Board’s order only to the extent of

eliminating from Piedmont’s certificate a few points west

of the Appalachians? _ e

The surgeon here has resorted te amputation at the neck

to cure a disease of the foot. There hasmever been a ques-

tion in anyone’s mind as to the fitness, willingness or abil- |

ity of Piedmont to operate that portion of the routes lying

in North Carolina and Virginia (which is the major portion

of the routes certificated), or that its applicatioif was suf-

ficiently broad to cover that portion of the routes.. If there

_is any question as to the propriety of certificating Pied-

mont to operate the westérn portion of the routes, or if it

should eventually be determined that the entire route sys-

. tem should be operated by some other applicant, the public

interest would obviously be better’ served by remandine

_ the case to the Board with the eastern portion of the cer>

tificate still in effect, subject to being vacated upon further

hearing by the Board. Under such a decree the Board could

- permit the operation of the western segments by an exemp-

tion order issued pursuant to Section 416 (b) of the Act,

while further hearings were being held.- - This nrocedare

would permit the communities of fiy States to conlinue to

receive the benefits of an existing air transportation SYs-

tem to which the Board found these communities entitled

more than two years ago.- ge?

_ REASONS FOR ALLOWANCE OF THE WRIT.

1. The United States Court of Appeals for the District

of Columbia Circuit has decided an important question of

federal administrative law which has not been, but should

be, settled by this Court.. This important question involves

the conclusiveness of Board findings as to the scope of ap--

- plications before the Board for certificates of public con-

venience and necessity.

2. The Court of Appeals, has not. given effect to an ap-

plicable decision of this Court. The decision in the, case of

Chicago, St. Paul, Minneapolis and Omaha Ry. Co. v. United

States, 322 U. 8S. 1, should have required said court to hold ®

-that the Board had the power to inelude in Piedmont’s cer-

tificate. points in the general area under consideration

which Piedmont had not specifically asked to serve.

3. The Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings with re-

_ spect to review of the expert judgment of an administrative

body for a specialized field .as to call for an exercise of,

this Court’s power of supervision.

These reasons are discussed in Piedmont? s attached

brief... ‘s | Z oe

‘Wuenerore, your Petitioner prays that a writ of cer-

tiorari issue under the seal of ‘this Court, directed to the

United States Court of Appeals for the District of Colum-

bia Circuit, commanding said Court to certify and send to

this Court a full and completed transcript of the record

and of the proceedings of the said Court of Appeals had

in the case numbered and entitled in its Docket No. 9748,

Strate Arrunes, Inc., Petitioner vs. Civi, AERONAUTICS

Boarp, Respondent, Prepmont Aviation, Inc., Intervenor,

to the end that this cause may be reviewed and determined

by this Court as provided for by the statutes of the United

- States; and that the order of said Court of Appeals be

reyersed by this Court.

Cuar.es H. Murcuson

Attorney for Petitioner,

Piedmont Aviation, Inc.

Stockton, Utmer & Murcuison

- 1016 Ring Building - « : so a Wee

Washington 6, D. C. ere ce ge aeeeen

Of Counsel : : ‘sy

11 —

IN THE

Supreme Court of the United States

‘Octoper Term 1949

Piepmont Aviation, Inc., Petitioner >

against

STATE Auntixes, Ixc., Respondent.

— oe

BRIEF OF PIEDMONT AVIATION, INC. iN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI. :

The decision of the court below appears in the Kecord

before this Court. (675.) It is not yet officially reported.

The statement of this Court’s jurisdiction, and the state-

- ment of the case, have already been set forth in the attached

petition for writ of certiorari.

SPECIFICATION OF ERRORS.

- The Court of ' Appeals erred in holding that Piedmont

_was not an applicant for the routes awarded. The Board's

- finding that Piedmont was an applicant for said routes was

_ a finding of faet with respect to which the Court could not

substitute its own judgment fer the —— judgment of

the Board. :

12.

Ba eae 7 pas

o> > eee ey

‘The Court of Appeals erred in holding that the Board

could not include in a certificate routes and points not ap-

plied for by the recipient of the certificate.

z 2

The Court erred in substituting its own judgment for the

expert judgment of the Board and setting aside the Board's

findiig of fact that Piedmont was fit, ‘willing and able to

operate the routes awarded to it. | ie

Iv. Me x

.. The Court of Appeals erred in directing that the Board’s

‘order be completely set aside rather than modified only to

the extent required to conform to the principles announced

by the court! “ decision. :

‘SUMMARY OF ARGUMENT.

The Board has been endowed by Congress with unusually

broad powers to establish the route pattern, and.to control

-the development, of an air transportation system which now

blankets the nation and ‘also encircles the globe. A narrow

circumscription of these powers, in the manner of the court

below, contravenes the clear Congressional intent in dele-

gating the powers, iand furthermore, denies to the Board.

the reasonable freedom of act on which: saa tite aan

agency must have: <a

It is the Board, not the court: which has the expert judg-

ment necessary to give proper weight to all the facts of rec- |

ord and to make ultimate findings of fact. This well-estab-

lished principle is particularly applicable in a case such as

this, where the Board had before it.a factual record cover-

ing thousands of pages and involving the air service needs

of a/large area of this country. In the exercise of its expert

judgment the Board has considered the multitudinous facts

in? this record and has found that Piedmont was in fact. an

applicant for the routes awarded it. The court below im-

properly usurped the function of the Board when it set

aside this finding of fact.

-The Act provides that an application for a certificate

shall be in such form and shall contain such information as

the Board shall require; and it further provides that the

’ . Board’s findings of fact shall be conclusive, if supported by

substantial evidence. Here the Board found that Pied-

mont’s application met the requirements of the Board and

that Piedmont was in fact an applicant for the rvates.cer-

tificated. Since there was ample and very substantial evi-

dence to support this finding of fact, the court below acted

improperly when it substituted its own finding for the find-

ing of the Board. As we have shown in the attached peti-.

tion, Piedmont applied for specifie routes serving nearly

all the cities finally certificated and also ‘conforming to a

substantial degree to the very routes which were ultimately

awarded. Furtherinore, Pieduont’s application (like/ that

‘of other applicants) contained a ‘‘eatch all’’ clause fAand a

request for relief under Section 401 of the Act, the clear

effect. of which was to make Piedmont an applicant for any

routes in the area which the Board might find rgquired.

Hence the Board’s finding of fact-was entirely proper and

must be sustained. ss.’

_ Even if it be assumed Cone that Piedmont was not

in fact an applicant for certain portions of the route system

awarded it, the Board nevertheless had full power to award

the certificate in question to Piedmont. The decision of this

Court in Chicago, St. Paul, Minneapolis and Omaha Ry. Co.

-- United States, 322 U. 8. 1, clearly establishes the power

of the Interstate Commerce Commission to award a certifi-

cate under similar circumstances, and should be controlling

here. Section 401 “(f) of the Act empowers the Board to’

include in a certificate ‘‘such reasonable terms, corditions

and limitations as the public convenience and necessity.may

require’’. Construed in such a ménner as to serve the pub-

lic interest, this power surely means that the Board, when

certificating an applicant for services applied for, may add

‘‘terms’’ and ‘‘eonditions’’ requiring othe: service for

which no application was made but which the Board has

found required. The court below wholly ignored the con-—

trolling effect of the decision of this Court and of Section

401 (f). |

Furthermore, the court below erroneously set aside the

Board’s finding that Piedmont was fit, willing and able to

operate the routes awarded it. The Board’s finding of fact

was supported by substantial evidence, indeed by over-

whelming evidence, of Piedmont’s fitness willingness and

ability to serve the very routes for which: it was certificated.

The finding was set aside by the court below on the unten-

able ground that none of Piedmont’s evidence on this point

-could be considered by the Board as to Piedmont’s fitness,

-Willingness and ability to serve points for which Piedmont

did not apply. This was a matter to be decided by the

expert judgment of the Board, not by the legalistic hypothe-

ses of a reviewing court.

If this Court should fail to reverse the decision below in

its entirety, it should at least order a modification of the

deeree proposed by the court below. .The decree below is

unreasonably harsh because it would apparently require

the Board to rescind Piedmont’s certificate in its entirety.

Any such rescission would necessarily mean that the many

cities in question would be deprived of an existing air‘ser-

~ vice even though all parties to this case are agreed that

these cities have a substantial need for the service. There-

fore, should this Court do nothing else, it should certainly

modify the decree to conform to the principles announced

below. Those principles would permit the Board to con-

tinue part of Piedmont’s certificate in effect (and issue an

exemption order as to the remainder) while further pro-

ceeedings were being held. By modifying the deeree in this

way this Court would avert irreparable i angary to the pub-

lee interest. ‘

POINT L.

Piedmont was an applicant for the routes awarded to it.

The Board’s finding to this effect was a finding of fact

which the Court is without power to set aside.

As shown by Chart 1 in the attaehed petition, Piedmont’s -

original application specifically proposed service to all of

the points included in the certificate except the few on the

Y-shaped extension resulting from the inclusion of service |

to Louisville. Chart 2 in the attached petition shows that

Piedmont’s amended application also specifically proposed

service to nearly all the cities certificated, and it specifically

proposed service along a very substantial portion of the

routes certificated. Also there was a request by Piedmont _

for modification of such routes as the Board might see fit, ’

and for plenary relief under section 401 of the Act. The

Board, after considering all these requests and the nature

of the proceeding in which they were made, expressly found

that Piedmont was an applicant for the routes awarded. It

was error for the court below to substitute its own finding

for that of.the Board on this point. :

The map which the court below included in its opinion -

- (676, top map) does not correctly reflect the situation be-

cause it admittedly purports to show only a part~of . the

service proposed by Piedmont in its apnfication. The court

assumed to modify the actual scope of the application by

eliminating all points described therein except those for

which Piedmont applied in’the sense that it ‘Caetiv ely, by

brief and by oral argument before the Board, sought”,

(679). While the court adopted with ease and unconcern

this, its own concept of a modification of the application, it

wholly ignored the fact that before the certificate was finally

issued, Piedmont, by brief, by oral argument, by letter and

by formal written motion, was earnestly and vigorously

requesting the Board to issue to it a certificate in the identi-

cal form in which it was finally issued. The court would

thus recognize that form of modifiéation of a request which

conforms to its own judgment as to the proper result, and

deny recognition to those forms of modification which con-

_form to the result arrived at by the Board.

However , the fundamental error of the court was its re-

fusal to givé proper effect and meaning to Piedmont’s ap-

; plication ‘*for such modification of ‘such routes as the Board

‘may find public convenience and neeessity require’’ and for

‘‘such other and further relief, general and specific, under

Section 401 [of, the Act] as the Board may deem appropri-

ate.’’ In concluding that these requests were not intended

to make Piedmont-an applicant for the routes which the

Board found required, the court had recourse to dictionary

definitions of the word ‘‘modification”’ in total disregard

of the history and circumstances surrounding the requests

in Piedmont’s application. The court has wholly failed to

apply the, principle so aptly stated by Justice Holmes in .

Towne v. Bisner, 245 U.S. 418, that, ‘A word is not a crys-

tal, transparent and unchanged; it is the skin of a living

thought and may vary greatly in color and content accord-

ing to the circumstances-and the time in which it is used.”’

Piedmont, in its application, sought authority to engage

in scheduled air transportation ‘‘on the routes detailed

-hérein, or such modification of such routes as the Board

may find public convenience and necessity require’’, and

also sought plenary relief under Section 401. Practically

eyery Other application in the proceeding contained, in

eM ying phraseology, clauses of similar import and intend-

ment., Many examples of what had come to be known be-

fore the Board as the ‘‘eatch. ‘all’? clause may be found in

this proceeding. (665-670)., Whatever the variations in’ .

individual expression, these clauses had come to have a well- |

defined meaning when used in proceedings before the Board,

and this meaning renders resort to dictionaries unnecessary

and improper.

. The purpose of these clauses was to inform the Board,

-and any rival applicants, that the applicants making use of

the clauses were applicantsfor any routes which might be

awarded in a pending proceeding; “whether or not such

routes should correspond to the routes proposed by the.

- applicants or any of them.

_ Before the present case came to hearing the Board had

considered such ‘*‘eatch all’? clauses and had -given cleat

notice to all concerned that it would construe these clauses

liberally in the light of the facts of each case. In the North

Atlantic Routes Case, 6 C.AcB. 319, the Board had decided

that three routes should be established across the continent

of Europe. Giving a broad interpretation to the ‘‘eatch

all’? clause in various applications, the Board had trans-

posed routes freely in the public interest. American Ex-

port, which had specifically applied only for a route across

central Europe, was awarded a route across northern

Europe. Pan American, which had specifically applied only

for routes across northern Europe and across southern

Europe, was awarded a route across central Europe. TWA,

which had specifically applied for a route across central

Europe, was awarded a route across southern Europe. The

Board went to great lengths in a unanimous opinioy on this

point to show that the ‘‘catch all’’ clauses of these various

carriers in fact contemplated-the awards which were made.

(6 C.A.B. at 345-350). |

The Board has frequently considered such ‘‘eatch all’’

clauses, and has given many practical examples as to

whether a particular enlargement or change in a specific

route pattern would’ be found as a fact to be within the

scope of the clause. Thus in the Rocky Mountain States

Case, 6 C.A.B. 695, the Board held that the inclusion, in the

certificate issued to Summit Airways, of: service to Salt

Lake City, Utah, as a terminal point, was appropriate al-

. though this point did not appear on any of Suminit’s pro-

_posed routes and its inclusion involved as extension from

Evanston, Wyoming , the most westerly poles. ssi ally

proposed by Sunimit. t

So also, in the North Central Case, 7 C.A.B. 639, en

Airplane Co. applied specifically only for routes emanating

out of Des Moines, Iowa to other points which were within

the state of Iowa. Nevertheless the Board found that ser-

vice was required: on route’ extending from Des Moines as

far north'as Minneapolis/®f. Paul, Minnesota, as far north-

west as Huron, South Dakota, and as far west as North

Platte, Nebraska. Under all of the circumstances of that

case the Board found. that Iowa Airplane Co., by virtue of

its ‘‘catch all’’ clause, was an applicant for these routes,

and the Board certificated the company to serve these routes

even though most of the route mileage lay outside the state

of lowa.

On the other hand, the Board held in the Panagra Ter-

tial Investigation Case, 4 C.A.B. 670, that an extension of

-Panagra’s routes over some 1,200 miles from the ,Canal

Zone to some terminal point in the United States was too

great a change to be deemed a modifi¢ation of its existing

route structure. Similarly, in the West Coast Case, 6

C.A.B. 961, it held that the application of Los Angeles Air- ’

ways, specifically proposing service out of Los Angeles to

points no farther north than Bakersfield and Santa Maria,

was not broad chough to justify its selection under its

‘catch all’’ clause for routes extending hundreds of miles

north to Medford, Oregon.

The foregoing examples clearly show that the asda de-

termination is one of fact. Whether a particular applica-

tion with its ‘‘catch all’’ clause is an application for a route

found required. by the Board, is a question which must be

determined by the Board on.the bgsis of all the facts of

record. That the question: is-one of fact and not of law is

clearly indicated in the case of W. RYGrace € Co. v. Civil

Aeronautics Board, 154 F. (2d) 27%. | In that case the Cir-

_~ cuit Court of Appeals for the Setond Circuit held that there

was no-requirement of law that a written application con-

tain a substantially accurate point-by-point description of

the routes to-be certificated. There the court further. held

that the written consent of a earrier to serve a route deter-

mined to be necessary is the legal equivalent of a full dress

application for such route. On rehearing, the Court said:

‘‘But we adhere to the view that a consent by a car-

rier to a 401 (h) extension proceeding begun by the

Board is the legal equivalent of a petition for the: same

a initiated by the earrier.’’ (154 F. (2d) at

287)

The solution of this question of fact in each ease mast be

based upon factors such as the length of the mileage of the ”

extended service, the amount of additional capital required

to operate-it, and the operating problems to be encountered,

No fixed value can be assigned to any of these factors, and

their individual weight and aggregate effect necessarily

involve the exercise of expert judgment based on speecial-

ized knowledge and experience in a field which Congress has

entrusted to the Board. In the exercise of its judgment,

the Board expressly found as follows: ;

‘*Piedmont’s application, when viewed in the light

of all pertinent factors, shows that this carrier was,

within the meaning of Section 401 (d), %& applicant

for the routes awarded it.’’ (616). ae

This finding cannot be set aside by the Court. The case

falls squarely within the rule announced by this Court in.

the case of Securities and Exchange Commission v.C he nery

Corp., 318 U.S. 80: :

oe exercise.of judgment in an area which

Congress has entrusted to the Agency—of course it

must not be set ‘aside beeause the reviewing Court

might have made a different deteqnination were it em-

powered to do so.”’ (318 U. - S. at 94)

Upon the foregoing we submit that Piedmont was, beyond

any question of doubt, an applicant before the Board for

the routes certificated to it. Its status as such was not

properly subject to challenge by the Court.

* ¢

= ?

— POINT IL.

The Board clearly has the power to include in a certificate

the obligation to serve points which the applicant did not

ask to serve in its written application. It was error for the

court below to rule otherwise.

Assuming, without saseding: that Piedmont’s applica-

tion did not request operations to the few points west of the

Appalachians which were not included in its route pro- |

posals, nevertheless the Board was not thereby precluded

from requiring service to these points. The decision below

would prevent the Board from requiring such service ‘md

would thereby frustrate the fundamental purposes of the

Act. For example, the result would be that after an inves-

tigation over a period of years had demonstrated a public

need for air transportation from Cincinnati, Ohio to Char-

lottesville, Virginia, along with many other pints, and after

one or more applicants had been found fit, willing and able

to perform satisfactory service in the area, all applica-

tions would have to be rejected and the investigation begun

all over again because the applicants-who proposed to serve.

_ Cincinnati did not propose to serve Charlottesville and

: those who proposed to serve Charlottesville did not pro-

pose to serve Cincinnati.

It was to prevent such a ridiculous result that Congress

made express provision in the Act that the Board should

not be bound to issue a certificate upon terms in form and .

substance as proposed by an applicant, but might add there-

to such terms and, conditions as the public interest might

require. Section 401 (f) of the Act provides that:

‘¢ ) there shall be attached to the exercise of the

privileges granted by the certificate . . . such reason-

able terms, conditions and jimitations as the public in-

terest may require.’

Ww hat could be more reasonable in the public interest than

fo condition the privilege of operations to points requested

upon the assumption of the obligation to extend the service

to other points in the same area which the Board finds to

need the service, and whieh the Board finds the applicant

- fit and able to serve? oe

Any doubt which might otherwise exist that the Board

has this power has been laid to rest by the decision of this

Court in the case of Chicago, St. Paul, Minneapolis and

Omaha Ry. Co. v. United States, 322 U.S. 1.

That case arose under Part II of the Interstate Com-

merece Act, known as the Motor Carrier Act, particularly

under Sections 207 (a) and 208 (a) thereof. | Section 207

(a), like Section 401 (d) of the Civil Aeronautics Act, em-

_ powered the Commission to issue a certificate, ‘authorizing

_ the whole or any part of the operations covered by the ap-

plications.’? Section 208. (a), like Section 401 (f) of the,

Civil Aeronautics, Act, provides that there shall ‘‘be at-

tached to the certificate such reasonable terms, conditions

and limitations as the public convenience and necessity may

‘from time to time require. . .”’

In that cfse the motor earrier applicant had actually,

stated its unwillingness to serve numerous points, and had

no ‘‘eatch all’’ clause in its application. Yet the COamnis-

sion issued a certificate authorizing service to the points

in question, and the applicant accepted the certificate.

On review this Court said:

“*The question of law in the case is whether the Com-

_ mission on its finding need for such service had power

to authorize service of intermediate points not asked

for by the applicant. The applicant has a¢cepted and

is defending the grant, but the competing rail carriers

complain of it.’’ “(322 U.S. at 3)

This Court then held that under the authority conferred by

Section 208 (a):

“Tt is clear that the Commission on the facts found |

had power to include in the authorization provision for

service greater than the carrter had. asked,’’ (322

U.S. at 4)

The Court of Appeals, in its opinion below, failed to men-

. tion said Section 401 (*) »r- said decision of this Court.

On the contrary, it saia “nt this question of the Board’s

power under the circumstances was ‘‘a question not hith-

~ erto posed before any other. court so far as we are aware.”’

(682). .The court’s failure to consider. the applicable sec- -

tion of the statute and the applicable decision of this Court

permitted it to fall into the error which it has committed.

POINT III.

The Court of Appeals has erroneously substituted its own

judgment for the judgment of the Board by finding that

Piedmont is not fit, willing and able to perform \the trans-

portation certificated. The finding of the Board stood un-’

challenged before the Board, and therefore is not subject’to

review. Furthermore, this is a matter peculiarly within the

specialized field entrusted to the Board and the een’

of the Board thereon is conclusive. :

The court. below reviewed the Board’ s finding of Pied-

mont’s fitness, willingness and ability, and ruled that this |

finding was arbitrary, capricious and without any evidence

to support it. (684). This. is perhaps the most glaring error

committed by the court. For the court to set itself up as

having ability superior to that of the Board as to what at-

‘tributes, characteristies and special skills shall constitute

evidence of an applicant’s fitness and ability to operate an

air transportation system over a given route, is to negative

the whole purpose of Congress to entrust this field to the

- specialized experience and expert knowledge of the Board. |

In the first-place, it is to be observed that the court based « —

- its conclusion upon a most limited and restricted view of

‘the evidence and a positive non-legal standard adopted by

itself as to what evidence the Board may consider on the -

point. There has never been any question but that there

was adequate evidence to establish Piedmont’s fitness, will-

ingness and ability to conduct operations serving all of the

certificated points in Virginia and North Carolina, where

the major portions of the routes are located. Jn fact, it

was conceded by counsel for State that Piedmont’s qualifi-

cations had been amply shown for all the routes awarde rd,

When asked by the Chairman of the Board the specific

question whether State was taking the position that Pied-

-mont was not capable of operating - routes to be certifi-

‘cated, counsel stated:

“We are taking the: position that both State und

Piedmont are fit and able; it’s a question of which has

demonstrated in 1. this record to be more fit, willing and

able.’’ (607) - :

_ ‘The real basis of the court’s holding is not that there was

a total absence from the record of Piedmont’s fitness, will-

ingness: ‘and ability, but that, because Piedmont had not spe-

cifically asked in its application to serve Louisville and the

other points west of the Appalachians, the Board could not

properly consider any evidence offered by Piedmont of*its .

fitness, willingness and ability in:a case where service to”

those points was to be included in the certification. - This is

made perfectly plain by the’ statement at page 20 in State's

reply brief below with reference to its counsel’s admission

of Piedmont’s qualifications:

oo it is plain that counsel was endeavoring to

make the point that an abstract finding of fitness, will- ae

ingness and ability could be of no avail to Piedmont

as Piedmont had not applied for the routes im question.

Counsel continued the line of thought with the sugges-

tion that if the Board ‘selected American Air Lines

for a route that they didn’t apply for and didn’t put in |

any evidence for and weren’t an applicant, I would say

that that didn’t belong to them no matter aided able they .

were.’ ’’. as

It is alas made clear by the fact that the Court, in its opin-

ion, did\not find absence of evidence of fitness and ability

of Piedmont generally, but only with respect to the points

‘‘west of the Appalachians and over mountainous terrain,’’ |

(684).

24 .

| 3 e

This finding by the court is all the more remarkable be-

cause there is not a séintilla of evidence in the record that

operations extending to Cineinnati,and Louisville required

~ any other, different or additional qualifications by the op-

erator than were required for operations to Roanoke, Vir-

vinia; Princeton, Bluefield, Beckley and Charleston, West

Virginia; Asheville, North Carolina; and Bristol and Knox-

ville, Tennessee: service to all of w hich was specifically pro-

posed by Pi edmont. A glance at any appropr iate topo-

pars il map demonstrates that-service to all of these lat-

ter pointsanvolves operations over ‘‘mountainous terrain,’’

such as that which the court, without any foundation in the

evidence, seemed to regard as a formidable hurdle for air

transportation to surmount. Where has the court acquired

the expert knowledge to enable it-to judge whether or not

the technical ability to cope with elevations of four to five

thousand feet is insufficient to cope with elevations a thou-

sand or so feet higher? The court was obviously transcend-

ing its proper spheré of authority when it-assumed to char-

acterize as absurd the position taken by the Board’s coun-

sel that the same fitness and ability which, would qualify an

applicant to operate from Hagerstown to Norfolk would

| _ also qualify it to operate from J acksonville to Miami. (685).

Instead of pointing out wherein it considered Piedmont’s —

evidence of fitness, willingness and ability insufficient to

show its ability to operate the routes certificated, the court

below concentrated on a single staternent of Piedmont’s

counsel. (684) ‘This statement pointed out that one of

Piedmont’s routes followed ‘the Shenahdoah Valley and

crossed the Blue Ridge Mountains only ata point where

they. were very low. The court below would have us believe.

that this was a fair characterization of all of the operations

concerning which Piedmont offered any evidence of its fit-

ness and ability, Reference to’ the-record where this state-

ment is set forth (553) makes if*clear that this remark of

counsel was directed only to a single route proposed by

Piedmont, that from Columbia, South Carolina to Wash-

ington, and was not intended to be offered as a description

of Piedmont’s entire proposed route system. The remark

was introduced by the statement at the top of the cited page:

“‘T would like to discuss first the proposed route from

Columbia, South Carolina to W inston-Salem, and: fronr .

W inston- Salem to Washington.’’ (553) -

The court below overlooked and failed to notice the fol-

lowing pertinent.items of evigence put jfto the record by

Piedmont which were most certainly fonsidered by the

Board to be relevant to Piedmont’s fitness and ability to

conduct operations to points west of the Appalachians and

_over mountainous terrain:

(1) As shown by flight ne of sak? four of its pilots,

- Piedmont had conducted at least 28 actual flights from Win-

ston-Salem, N. C., to. points west of the Appalachians, to

wit, Cincinnati, Ohio; ; Huntington-Ashland, Charleston and

‘Beckley; West Virginia: and Middleshoro- Harlan, Ken-

tucky. (292)

(2) In addition to the flights. just eatcued. the same

pilots had flown at least 93 actual flights from Winsten-

Salem to points such as Bristol, Asheville, Knoxville and

Roanoke, all of which involved: aperations over mountain.

one terrain. (293) <3 e

(3) Furthermore, Piedmont had conducted very exten-

- sive charter flights from.its base at Winston Salem (289,

466) ; and Cincinnati and Chicago were enone the most fre ie.

',. quent destinations (445). -

The court’s assertion that the record is barren of any

evidence of Piedmont’s fitness, willingness and ability to |

operate the routes. certificated is nothing more \than a eon-

tinuation of its original erroneous conclusion that Piedmont

was not an applicant for these routes and affords no justi-

fication for setting aside the Board’s finding to the con-

trary.

POINT IV.

Should this Court fail to reverse the order of the Ooart of

Appeals in its entirety, said order should at least be modi-

fied to the extent that it shall provide,

ing Piedmont’s certificate in.its entirety, that there be con- _

tinued in effect that portion of the routes as to which Pied-

mont unquestionably applied and AE i hace its ak will-

ingress and ability.

It will be, observed that Piedmont, in its original applica-

tion, specifically proposed service to every point named in

- the certificate except Louisville, Lexington-Frankfort, Mid-

dlesboro-Harlan and the seasonal stop at Morehead City.

Even if the scope of Piedmont’s application should be re-

: ‘stricted by. its amendment to the eastern portion of the

routes (as vat court below has found), nevertheless Pied- ~

mont specifically applied to serve Charleston, W. Va., Bris-

tol, Va.-Tenn., Asheville, N. C., and all points on the aarith.

cated routes lying easterly thereof. Route 3 of the three

routes awarded to. Piedmont, the route from Roanoke to

Wilmington, N. C., was entirely within the admitted scope

six cities west of the above-named points from routes 1 and

2 (less, than one-quarter of \the total number certificated)

-would leave the award of the rémainder of these routes

entirely within the admitted authority of the Board.

Such a modification of the decree below would be mani-

>festly in the public interest. It would mean the 28 cities

presently certificated would not be deprived, during a re-

investigation by the Board, of an existing efficient public. .

service which all parties agree that they need. Ifa portion

of Piedmont’s certificate were left in effect, the Board could,

under Section 416 (b) (1) of the Act, provide by an exemp-

tion order. for the continuation of service to the other cities

involved while it re-examined in accordance with the prin-

. ciples announced by the Court the question whether Pied-.

. mont, State, or some other applicant should operate all or

any part 6f the presently certificated routes. Under. the

order of the court below, the existing service would appar-

ond

s] 4

— \

cores ers ff .

ently be destroyed since there is no provision in the Act by

Which Piedmont, without some existing effective certificate,

could receive the mail pay upon’ which its economic exis-

tence as a carrier is dependent. Such a modific: ition. of the

order below could not injure State since i no event could

State secure a certificate until further proceedings could

be conducted by the Board, ; }

Modification of the order below.as here proposed is re-

quired by the principles announced by this Court to govern

the conduct of the courts in their function of reviewing

administrative orders. In Addison vy. Holly Hill: Fruit

Products, 322 U.S. 607, where the Administrator had made

a determination found invalid by the Court, this Court said:

: “But that leaves the difficult problem of the proper

disposition of the case. It is our view that the case

should be ‘remanded to the district court with instruc-

tions to hold it until the Administrator, by makina a

valid determination of the area with all deliberate

speed, acts within the authority given him by Congress.

‘*Suech an adaptation of court procedure to a remod-

eling of.the situation as nearly as may be to what it

should have been initially is not unprecedented. . Such

was essentially the procedure which was devised to "4

ravel the skein in United States v.. Morgan, 307 U.

183, 83 L. Ed. 1211, 59 S. Ct. 795.- The Court did: at

feel itself balked by the kind of considerations that

seemed controlling to a Baron Parke. eThe creative an-

alogies of the law were drawn upon by which great

equity, judges, exereising imaginative resourcefulness,

have always escaped the imprisonment of reason and

fairness ea mechanical concepts of the common

law.’’ (322 U.S. at 618, 620)

In that case the Court re-emphasized the principie pre-

_ viously stated in the Morgan case as follows:

OS ce construing a statute setting up an adminis-

trative agency and providing for judicial review of its

action, court and agency are not to be regarded as

wholly independent and unrelated instrumentalities of

justice, each-acting in the performance of its preseribed

statutory duty without regard to the appropriate func-

tion of the other in securing the plainly indicated ob-

28 -

-Jects of the statute. Court and agency are the means

adopted to attain the prescribed end, and so far as their

duties are defined by the words of the statute, those

words should be construed so as to attain that end

through co-ordinated action. Neither body should re-

- peat. in this day the mistake made by the courts of law

when: equity was struggling for recognition as an ame-

liorating system of justice; neither can rightly be re-

garded by the other as an alien intruder, to be toler-

ated if must be, but never to be encouraged or aided

by the other in. the attainment of the common aim.’’

(322 U. S. at 621)

We submit that such a modification as we propose is

clearly indicated by these principles. The decree below,

without modification, plainly violates these principles to the

great detriment of the public interest..

CONCLUSION.

The Court of Appeals, in its decision below, clearly over-

stepped the bounds of permissible judicial review. It com-

_mitted serious error at the outset when it substituted its

own finding of fact for that of the Board as to the.scope of

- Piedmont’s application. It then intensified the error by

completely ignoring a decision of this Court which should

have demonstrated to it that the Board had full power to

issue the certificate to Piedmont. Further, the court below

committed glaring error when it overruled the Board’s ex-.-

pert judgment of Piedmont’s fitness, willingness and abil-

ity. Following all this, the court entered a decree which is

unreasonable éven in the light of its own rulings.

This tragedy of errors clearly calls for this Court to

grant Piedmont’s petition for a writ of certiorari.

_ CHaries H. Murcuison

Attorney for Petitioner,

-Piedmont Aviation, Inc.

Stockton, UtmMer & MurcHIson

1016 Ring Building

. Washington 6, D. C.

Of Counsel

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.