Petition for Writ of Certiorari — Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc.

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- SUPREME COURT

OF THE UNITED STATES

October Term. 196f)

THE COLORADO ANTI-DISCRIMINATION GOMMIS.

SION and EDWARD MILLER, MRS. PAUL BUDIN,

_ CLARENCE C. BELLINGER, GENE MANZANARES,

ROBERT C. KRELER, GEORGE J. WHITE, and

GEORGE O. CORY, as:members of said Commission,

Perrtiowzns, :

_ ve. \

CONTINENTAL AIR LINES, INC., Responvenrts.

PETITION FOR WRIT O6 CERTIORARI TO THE

SUPREME COURT OF THE STATE OF COLORADO

Duke W. Dunzan,-

Attorney General,

Froyp B. Exceman,

Assistant Attorney General,

104 State Capitol,

Denver 2, Colorado,

Attorneys for Petitioners.

CASTWOCD PRINTING CO. © 23854 LARIMER * OENVER &. GOLD.

’ , “ Ce ae

2 a

INDEX. ea

e ¢ PAGE

lL. INTRODUCTION ° bale t armtecaechentnar saan ]

II. REFERENCE TO OPINIONS BELOW 2

11. GROUNDS FOR JURISDIC TION .... i ee

IV. QU ESTION PRESENTED FOR REVIEW 2

V. CONSTITUTIONAL AND STATUTORY

PROVISIONS nV... 3

V1. STATEMENT OF THE. CASE. ......................... 4

VII. GROUNDS AND REASONS FOR GRANT. _

ING FIRE APIO, ons SN oda pncce dobehecttsicccccainarbapcensaas 10°

WW aREs: CAPPS METISIEIT | Sorsacciecsectsscalas sdntedacotnmatadesnicunns 16

Appendix A — Opinion and Judgment of the Colorado

~* Supreme Court ..... Palins (ofa areas arel oe

Appendix B— Complaint of-Marlon D. Green ............. 49

Appendix C — Decision of the Anti-Discrimination

Commission ~......:....\.254... heen e eee Pe 51

Appendix D -— Decision of the Denver District Court. 56

TABLE OF CASES

Brown v. Board of Education, 247 U.S. 483 0... 12

Colorado Anti-Discrimination Commission vs. Con-

, tinental Air Lines (1960), 143 Colo, 590, 355 P

” (2d) 83 . sAbe NON erin EI Aree aA ers 11

- Colorado Anti-Discrimination Commission, et al. v

Continental Air Lines, Inc. No. 19771 (1962),

Colo... 368 P(2d) 970

_ Hall v. De Cuir (1878), 95 U.S. 485 ow... Sci he May ae

tae pom

INDEX (CoNTINUED)

PAGE

Huron Portland Cement Company v. City of Detroit,

i: Se ee Ae a ee ee

“Morgan v. Virginia, (1946) 828 U.S. 373 00000 ...18-14

Railway Mail Association v. Corsi (1949) 326 U.S. 88 = 15

| ‘CONSTITUTIONS

FEDERAL:

Article I, Seetion 7, Clause 7 0.000.....0.......... Syne er 15

Article I, Section 8, Clause 3 ....08 2 bee 23

Fourteenth Amendment |.............002........-20---+: kaatoeites 14°

STATUTES

_ FEDERAL: | |

18 Stat. 474 (Enabling Act of Colorado .................. _ 3, 14

25 US. WEST (SD), Gh tnt. GOO nn asses 2

STATE: :

(Anti-Diserimination Act of 1957)

Section 80-24-2(5), C.R.S. 1953-—-..........0. 3, 11, 14

Section 80-24-6(2), U.R.S. 1953 00.0... eee. 3, 11, 14

No.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1961

THE COLORADO ANTI-DISCRIMINATION COMMIS. °

SION and EDWARD MILLER, MRS. PAUL BUDIN,

CLARENCE C. BELLINGER, GENE MANZANARES,

ROBERT C. KEELER, GEORGE J. WHITE, .and

GEORGE 0. CORY, as members of said Commission,

PETITIONERS,

VS.

CONTINENTAL AIR LINES, INC., Respoxpesrs.

PETITION FOR WRIT OF CERTIORARI fO THE

SUPREME COURT OF THE STATE OF COLORADO

I. INTRODUCTION

COME NOW the petitioners, by their attorney, Duke

W. Dunbar, Attorney General, State of Colorado and

Floyd B. Engeman, Assistant Attorney General, State: of

Colorado, and petition the Court for the issuance of a

_ Writ of Certiorari to review a judgment of the Supreme

Court of the State of Colorado, being the court of last

resort in the State of Colorado, .in the case of The Colo-

rado Anti-Discrimination Commission, et al. v, Continental

Air Lines, Inc., No. 19771.

wiles

II. REFERENCE TO OPINIONS BELOW

The opinion sought to be reviewed is reported as The

Colorado Anti-Discrimination Commission, et al. v. Contt-

nental Air Lines, Inc., 368 P. (2d) 970, which opinion is

not as yet reported in the official reports of the Colorado

Supreme Court, but is attached hereto as Appendix A.

The opinion was first entered on February 23, 1962. There-

after a petition for rehearing was filed. As a result the

original opinion.was modified, and ax modified was ad-

hered to on March 5, 1962. The petition for rehearing

& was denied and remittur issued on this same day.

Ill. GROUNDS FOR JURISDICTION

The statutory prevision relied upon as conferring

jurisdiction on this Court to review the judgment or de-

cree in question by Writ of Certiorari is 62 Stat: 929, 28

U.S.C. 1257(3). : ;

IV. QUESTION PRESENTED FOR REVIEW

— The question presented for review is as follows:

| Does a state statute which prohibits discrimination

based on race in the hiring practices of an interstate air

carrier conflict with the provisions of Article I, Section 8, *

Clause 3 of the Constitution of the United States by being

an undue burden on interstate commerce and _ prohibited

by the preemption of this field by the laws of the United

States?

V. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

“A. Article 1, Section 8, Clause 3 of the Constitution

of the United States apads as follows: e

Bia tatoo rs of Congress —— The Congress shall have

power: (3) To regulate commerce with foreign na-

tions, a among the several states, and with the

Indian Tribes.”

B. -Section 4 of the Enabling Act of the State of

Colorado reads as follows: (18 Stat. 474, 1 Colo. Revised

Statutes 1953, 237, at 258)

4 “* * * | Provided, That the constitution’ shall be

republican in form, and make no distinction. in civil

or political rights on account of race or color, except

Indians not taxed, and not be repugnant to the consti-

tution of the United States and the principles of the

declaration of independence ;”’

_C. The Colorado Anti-Discrimination Act of 1957

reads in applicable part as follows:

**80-24-2 Definitions

(5) ‘*Employer™ shall mean the state of Colo-

rado or any political subdivision or board, commis-

sion, department, institution or school district thereof

and every other person employing six or more em-

* £#+ #@ 3°

**80-24-6. Diseriminatory and unfair employment

ployees within the state;

practices. -—

(2) For an employer to refuse to hire, to dis-

charge, to promote or demote, or to discriminate in

ae ee.

the matters of compensation against, any person

otherwise qualified, because of race, creed, color, na-

tional origin or ancestry.’*—

These statutory provisions are found in the Colorado

Revised Statutes of 1953, Vol. 8, manent Supplement,

at pp. 1008 and 1010, thereof.

VI. STATEMENT OF THE CASE

(References are to page numbers of the

consolidated record.)

This case involves Marlon D. Green, a U. S. Air Force

pilot officer with the rank of Captain, who sought employ- .°

ment as a Commercial air-line pilog While stationed in

Japan with the Air Force, he sent letters of application.

to most of the main air- ‘lines in the United States, but

with no success. On Apria| 27, 1957, on his return from

Japan, he seeured an employment application form from

the San Francisco office of the respondent, Continental

Air Lines, Inc. (hereinafter referred to as **Continental’’).

This was sent to the Denver oftice of Continental for con-

sideration for employment as a pilot. It was received

April 30, 1957 (p. 224 and 225). Within three weeks Con-

iinental’advised Mr. Green they were not hiring pilots’ at

that time but that his application would be kept on file

for future consideration (p. 225). :

° .

In June 1957, Continental began recruiting for some

fourteen or fifteen pilots. It asked Green to come to

Denver for an employment interview not knowing he was

a negro (p. 226, 227, and 433). Green arrived in Denver

on June 24, 1957. The next morning he reported to Con-

oo a

tinental’s office at Stapleton Air-Port. Shortly thereafter

at the direction of Captain Cramp, Assistant Chief Pilot >

fur Continental, Gréen took a link trainer and flight test

(p. 231, 232, and 235-239). Green and five others were all

considered at about the same time’ for employment as

pilots by respondent. They were all,found to be qualified

according to the standards prescribed by Continental (p.

360). Of the six,-Green had by far the most previous

flying experiende ax shown by the following table:

Total First Co- Multi *

‘Hours Pilot Pilot Engine

Green 3071 :30 1832 :15 _778:45 2900:00 (pi 490, 310)

George ,2100:53 1145:35 874:13 897:23 (p. 474, 494)

Stearns 1200:00 , 750:00 . 450:00 934:00 (p. 478, 493) .

Bryant 1150:00 1160:00 _- 5:09" (p. 486, 495)

Dresser . 1031 :00 916:00 \— -—— (p. 482, 496)

Cole 1000:00 906:00 100:00 200:00 (p. 470, 497)

* Acquired between June 25, 1957, when Green and: Bryant were

examined and. July 1, 1957.

Mr. Harold W. Bel Vicw-Pr sulibied Personnel, Con-

- tinental Air Lines, Inc., admitted Mr. Green was consid-

‘ered to be a qualified pilot by Continental (p. 343). Mr.

Kenneth C. Sorby, Manager, Employment and Employee

Relations, Continental Air Lines, Ine., called as a witness

said of Mr. Green, *‘ All you bave to do, I think, is shake

hands with this fellow and you realize you have a pretty

good boy. He is very frie ndly. I have been impressed

with him right along.”’ (p. 405)

Continental asked four of the six June 1957 applicants

to enter its training program in July 1957. (p. 353) Later,

in August 1997, Continental hired ten pilots. (p. 325)

The fifth of Green's contemporary applicants was: ordered

‘into the training program in September. (p 365) Green

was never asked to enter the training program, nor was

he ever hired.

—6—

When Continental wired for Green to come to Denver,

it did not know he was a negro, since -he-had not shown his

racial designation as -required by the application ‘form

furnished to him and fone of the other of the six June

applicants. (p. 235-237, 343) The form not requiring

racial designation, was identified by respondent's witness

Bell, as being the form used since January 1954. (p. 155)

‘He could not explain how Green's application happened

to require ‘‘race’’ and hy’ he was requested to enter the

word “negro” on the application blank by Captain Cramp,

respondent’s Assistant Chief Pilot. (p. 156)

When questioned as to why five of the six June 1957

applicants, were selected for training and Green was not,

Mr. Bell said he didn’t know exactly who or how the de-

cision was made. Mr. Sorby, Continental’s Personnel

Manager, described the pilot selection as ‘quite informal’’

and ‘‘haphazard.’’ He stated that-qualified pilots were

not rated showing one man better than another by reason

of. having more hours or something of that sort. He

stated that, ‘‘It could be happenstance that Green with

his record was omitted,’’ and that the reason Green wasn’t

hired was that, ‘*We didn't need that number of pilots.”’

(p. 179, 184)

—_

Continental's policy manual states that applicants

‘*will be considered solely on the basis of fitness and ability

for the work as determined by such factors as character,

skill, intelligence and physical qualifieations.”’ It places

responsibility for selection upon the department head or

his designated representative to ‘select from the appli-

cants referred to him by the Employment Manager, the

individual best suited for the position.’’ (p. 437) Mr.

Sorbey stated that the pilot job is of high importance.

E we

About July 8, 1957, Mr. Bell wired advising Green

that he was not selected for the July training elass. The

telegram was sent to the address of his parents in Arkan

sas. (p. $85) Green was told this by Bell when he tele.

phoned him long distance after waiting several days past

July 4th. 1957, the last day of the promised ten within

which he was told he would be notified. (p. 241) This

telegram was not received by his parents. Continental's

Exhibit 3, (p. 447) refers to sucha telegram as undeliv-

ered.

(ireen was not given the usual interview at the place

the other applicants received it, nor was he given a physi-

‘cal examination.

Continental ceaséd to consider Green for ‘employment

because of a newspaper article appearing in early August~

to the effect that Green had filed formal complaints alleg.

ing discrimination because Continental was not intefested

in those pilots who make the front page. (p. 328, 441)

Green filed a complaint with the Commission on Aug-

ust 13, 1957, Appendix B. (p. 165 of record) Continental

was ordered to appear for a hearing on the Complaint on

April 23, 1958. (p. 166) The Answer by Continental was

filed on the day of the hearing which was had by agree-

“"mént on May 7, 1958. (p. 180) The question concerning

the conflict of the Colorado Anti-Discrimination Act of

1957, with Article I, Section 8, Clause 2 of the Constitution

of the United States was raised by Continental in the

“Third Defense’ of said Answer, (p. 172-175) which in

that part reads as follows: 2

yr ‘hh. Respondent is engaged in the interstate transpor-

> = ~~

«Sine

tation of passengers and freight by air by virtue of

and Subject to the laws, statutes and rg¢gulations of

the United States applicable to interstate commercial

carriers by air, including the Civil Aeronautics Act

of 1938, ax amended (49 U.S.C.A. Sec. 401 et seq.) and -

the railway Labor Act, as amended (45 U.S.C.A. See.

151 et seq.)

2D By such laws, statutes and regtlations the United

States has pre-empted and re-erved -to its exclusive

jurisdiction the regulation and control of interstate

coimmercial carriers by air pursuant to the provisions

of Article I; Section 8 of the Constitution of the

United States. §

«3. The previsions of the Colorado Anti-Discrimina-

tion Act of 1957, purporting to regulate and confrol

Respondent in its op@rations as an interstate commer-

cial carrier by air, are and constitute an undue burden

‘ on interstate commerce in violation,of Article I, See-

mercial carrier lis air.’’ :

tion 8 of the Constitution of the United States.

64, By reason there, the said Act is unconstitu-

tional and void insofar as it purports to regulate and

control Respondent’s operations as an interstate com-

Following theQparing and thé submission of briefs,

the Anti-Discrimination Commission rendered its Findings

of Fact, Conclusions of Law and Orders relative to the

Complaint of Marlon D.«Greei on December 19, 1958,

Wherein the Commission concluded the act was constitu-

tional and that Continental had = discriminated ajainst

Green... Appendix C. Continental was ordered to give

7 ls

Green the first opportunity to enroll in its next training

course with a eas status of June 24, 1957. =e

Continental appeale ‘d the decision of the Conmission

to the District® Court of Denver, Colorado. Again the.

question of the violation of the C dantttation of the United

States was ratsed. At this point Green had his first op-

portunity to resort to the 1875 Enabling Act of the Con-

gress of the United States. This he raised in his Answer

to Continental’s Petition to Review. (p. 33) The District

Court remanded the case to the Commission to make find-

ings of Fact as to whether Continental was engaged

interstate commerce, whether Continental was subject to

the discrimination statute, and whether the job Green ap-

plied for actually involved interstate commerce. (p. 44, 45)

As a result the Commission vacated the former decision

and entered a new decision. (p. 526-544) Upon return to

the District Court, the Court held the Cammission, by its

new order, had made the complaint moot. (p. 65) This

decision was reviewed by the Colorado Supreme Court by

Writ of Error, in ease No. 19215, The Colorado Anti-Dis-

crimination Commission v. Continental Air Lines, Ine.,

(1960),......Colo......, 355 P. (2d) 83. The~Supreme Court

held the Commission had no power to withdraw its first

decision; therefore, its second decision was void. Sinee

the rial court had never ruled on the review of .the first

decision of the Commission, it was ordered to do. so. a

- °o °

The Commission and Respondent then entered Lito a

Stipulation that (1). Respondent was engaged in interstate

commeree; \(2) the Commission would find Continenta!

was subject to the Anti-Diserimination Act and (3) the

job Green applied for involved interstate operations. (p.

550-551) The ‘District Court then heard further argu-

ments and briefs were submitted. The. Distriet Court

entered extensive Findings, Conclusions, and Judgment (p.

997-990) The Court held the Anti-Discrimination Law

as applied to Continental violated the Constitution of the

United States and since Congress had pre-empted the field

Colorado’s Anti-Diserimination law could not be applied

to one engaged in interstate commerce, such as respond.. .

ents, Continental Air-Lines, Inc. Appendix D.

*Qn review by way of Writ of Error, the Supreme -

Court affirmed the judgment of the District Court on the

grounds that ‘‘with- reference to interstate carriers the

regulation of racial -discrimination is a matter in which

there is a ‘need for national uniformity,’ an’ that the

states are without jurisdiction to act in that area.’’

VII. GROUNDS AND REASONS FOR GRANTING

° CERTIORARI .

Petitioners submit this isa case which comes within

the provisions of Rule 19 (1) (a) of the Rules of this

Court in that the decision of the Colorado Supreme Court

concerns a federal question of substanee not heretofore

determined by this Court.- Although this Court has de-

cided tiany cases touching upon the power of the states to

legislate in the area of interstate commerce, this Court

has not been called upon to decide whethér a’ state anti-

discrimination statute prohibiting discrimination as to

color by an interstate air carrier in its hiring practices %

falls within that area’ of interstate commerce which by

nature requires uniformity of regulation and would be

outside the state’s power to so control by state legislation.

This Honorable Court has indicated such questions

Ss ee

are properly brought to this forum by their very nature.

In this regard, we find the following statement by this

Court in Hall v. De Cuir (A877), 95 U.S. 485, 488:

“The line which separates the powers of the

States from this exclusive power of Congress is not

easy to determine on which side a particular case be-

longs. Judges not infrequently differ in their reasons

for a decision in which they concur. Under such eir-

cumstances it would be a pseless task to undertake to

tix an arbitrary rule hy which the line in all cases be

located. If ix far better to leave a matter of such

delicacy to be settled in each case- upon a review of

the particular rights involved.” (Emphasis supplied.)

That a diversity of opinion exists as to,whether the

Colorado Anti-Discrimination Act of 1957 violates these

premises is self-evident from the opinion herein of the

Colorado Supreme Court, it being a 4-3 decision. Justice

Krantz filed a lengthy dissent, as did Justice Pringle.

Also, our former Justice Doyle, now judge of the Federal]

District Court of Coloradg, filed a lengthy concurring

opinion to the former opinion when this case was first

before our Supreme Court in Colorado Anti-Discrimina-

tion Commission v. Continental Air Lines (1960), 143 @olo.

590, 355 P. (2d) 83, 86, in which he expressed views in

accord with the present dissents of Justices Frantz and

Pringle.

It is also of tmportance to note that in all the, briefs

heretofore submitted, including those of Amicus Curiae

consisting of Aierican Jewish Committee, Anti-Defama-

tion League of B’nai Brith, and the Civil Rights Division

of the Department of Ju-tice, coun c} for each party con-

—_

—12—_

cerned have not been able to cite a case that has expressly

answered the problem with which this case is concerned.

Petitioners’ primary reason for believing the Writ of

Certiorari should be granted rests upon the premise that

the Colorado Supreme Court in relying almost entirely

upon Hall v. De Cuir (1877), 95 U.S. 485, as supporting

its opinion, misapprehended and wrongly applied the De-

Cuir case.

It was pointed out that Hall vs De Cuir, supra, was

‘*handed down seventy-six years prior to Brown v. Board

of Education, 247 U. S. 483;’’ that, the case ‘thas been

evaded and devitalized’’ and that it ‘‘has no vitality to-

day.’’ To overcome such arguments, the Colorado Su-

preme Court cited Huron Portland Cement Company v.

City of Detroit (1960), 362 U.S. 440, as current approval

by this Court of the doctrine of Hall v. De Cuir, supra.

The Hall v. De Cuir case appears to have been cited

~ in Huron Portland Cement Company, supra, for the basic

principles of law pertaining to who shall regulate inter-

state commerce and not because of the facts of the case.

In brief, Hall v. De Cuir, says that what is or is not a’

regulation of interstate commerce cannot be decided by

any set standard, but must be cofisidered on a review of

the particular rights involvedin each case. In Huron

Portland Cement Company, supra, page 443, this Court

said:

<*In determining whether the state has imposed

an undue burden on interstate comn.erce, it must be

borne in mind that the Constitution when ‘conferring

upon Congress the regulation of commerce’, . . . never

. | $3

intended to cut the State off from legislating on ‘all

subjects relating to the health, life, and safety of their

citizens, though the legislation might indirectly affeet

the commerce of the country. Legislation in a great

variety of ways, may affect commerce and persons en-

gaged in it without constitating a regulation of it,

within the meaning of the Constitution."’

The Colorado Supreme Court also relied upen Morgan

vr. Virginia, 328 U.S. 373, 66S. Ct. 1050, 90 L.Ed. 1317 as

supporting its conclusion the interstate commerce clause

permits only federal regulation of discrimination by an

interstate carrier and that states have no power to legis-

late in this area. -We believe the court also misappre-

hended the effect of this case because this court said, on

page 378, of 328 U.S., to-wit: :

‘**Burdens upon commerce are those actions of a state

which ‘directly impair the usefulness of its facilities

for such traffie’. * * *. A burden may arise from a

state statute which requires interstate passengers to

order their movements on the vehicle in accordance

with local rather than national requirements.’ ©

Since the Virginia statute required segregation of passen-

gers, Whereas the national policy required equal treatment,

this court was right in applying the doctrines set out above

and holding the act unconstitutional as was done in Hall

ve. De Cur, supra. However, for the Colorado Supreme

Court to apply these same rules-to a state statute which

ix ir cepformity with and in the furtherance of the ‘na-

tional requirement’’ and toe then reach the conelnsion the

statute is unconstitutional seems to be a clear misapplica

tion of the case aad a wrong result.

: ‘We submit that Morgan v. Virginia, supra, doesn’t

stand fer the proposition that all regulation of discrim-.

inatory practice by an interstate carrier is vested in the

federal government. On the contrary this court concluded

only that the Virginia statute upset the balance between

the police. power of the state and the need for national

uniformity.

This same conclusion is not applicable to the Colorado

_ Anti-Disecrimination Act. of 1957 because the act does not.

affect the passengers — it only applies to the employees.

No undue burden has,or can be shown. There is an en-

tirely different regulation of interstate commerce by a

state statute which requires segregation of passengers by

an interstate carrier when compared with a state statute

which prohibits discrimination by an employer in the hir-

ing of employees. The former concerns the primary pur-

pose of the carrier —- the passengers. The latter concerns

only a tool or means of carrying passengers, being the

pilot in this instance. The former is direet — the latter

indirect. The former is prohibited — the latter ix allowed.

The Colo ado Anti-Diserimination Act of 1957, as applied

to respondent, Continental is in this latter category. It

is a valid enactment pursuant to the police power of the

state and in conformity with the nitional requirement.

Further, the Colorado statute merely codifies that

which is guaranteed by the 14th Amendment of the Consti-

tution of the United States and which is in furtherance

of the Congressionally enacted Enabling Act to the Consti-

tution of Colorade. To say that a statute which forces

°; . J . ° .

an interstate carrier to comply with the Constitution of

the United States by giving equal rights, privileges and

protection to all, can hardly be said to be an undue restric-

pe | ae

tion on interstate commerce and to be prohibited by any

acts of Congress or by its silence upon the subject.

The second reason for granting the writ of certiorari

ix founded ‘upon the premise that the opinion ef the Su-

preme Court in this ease had been decided in a way prob-

ably uot in aceord with applicable decisions ef this Court.

ZAs stated previously, no decision of ‘this Court can

be found that ts exaetly im point, but of the cases found,

Railway Mail Association vs. Corsi (1945), 326 0. S. SS,

seems most closely in point and should be controlli g here,

Had the Sapreme Court of Colorado followed the rationale

of that case, the decision herein would have been to the

contrary.

’

The part of the Cors: case with which we are con.

cerned has to do with the argument presented by the peti-

tioner, Railway Mail Association, that the New York anti-

disérjmination law conflicted with Article 1, Section §,

Clause 7, of the Federal Constitution and that “Congress

had preempted the field; thereby precluding New York

from applying its anti-diserimination law, This , Court

rejected these arguments by holding that **Congress must _

clearly manifest an intention to regulate for itself aetivi-

ties of its employees, which are apart from their govern-

mental duties before the police power of the state is pow-

erless.”’ This Court found -*-ne such clear manifestation

of Congressional intent to exelude*” in the Corsr case.

The foregoing prityiple and rationale are particularly

applicable to the ease at bar. In Corsi, supra, the Consti.

trtional provision cited authorizes Congress to establish

postoftices amd post-road=. The constitutional provision iti

our case authorizes Congress to control interstate com

i Se

merce. If the State of New York can legislate and control

mefnbership practices of the postoffice employees organi-

zation, can't Colorado legislate’ and control employment

practices of an interstate-carrier who does its hiring and

maintains its employment office in Colorade? We submit

that Colorado ean so legislate and apply its statute to such

a carrier as Continental. :

VIII. CONCLUSION

The foregoing statements raise serious doubts as to

the correctness of the decision of the Colorado Supreme

Court. We believe it is of utmost importance that this

Honorable Court undertake a defailed review of this case

and the broad ramifications of the principles involved.

WHEREFORE, petitioners pray this Petition for

Writ of Certiorari be°granted so that the injustice done

to Marlon D. Green can be corrected.

Respectfully submitted, hs

Duke W. Dunsar, ae

Attorney General, tees

Fioyp B. Exceman, _

Assistant Attorney General,

104 State Capitol,

Denver 2, Colorado,

“4

Attorneys for Petitioners.

|, =

Appendix

IN THE.

SUPREME COURT OF THE ikea OF COLORADO |

tHE COLORADO ANTI-DISCRIMINA. |

TION COMMISSION and EDWARD

MILLER, MRS. PAUL BUDIN, CLAR-

ENCE C. BELLINGER, GENE MAN-

ZANARES, ROBERT C. KEELER. |-

GEORGE J. WHITE, and- GEORGE O. _ Error to the

CORY, as members of said Commission } District Court of the

and MARLON D. GREEN, City and County of

Plaintiffs in Error, Denver

% Vv.

CONT INENTAL AIR LINES, INC.,

Defendant in Error.

This cause having been brought to this court by writ

of error to review the judgment of the District Court of

the City and County of Denver, and having been hereto-

fore argued by coutisel and submitted to the consideration

and judgment of the court upon the matters assigned as

constituting error in the proceedings and judgment of Said ~

Distriet Court, and it new ‘appearing to the court that

there is no error in the®*proceedings and judgment of said

District Court.

it is therefore ordered and adjudged that the judg-

ment of said District Court be; and the same is hereby,

affirmed, and that it stand in full foree and effect; and

_ that this cause be remanded to said District,Court for such

other and further proceedings, according to law, as shall

be necessary to the final execution of the judgment of said

District Court in the cause, notwithstanding the said writ

of error. |

By the Court. En Bane. February 13, 1962.

ana

—1§—

CLERK'S OFFICE

SUPREME COURT

STATE OF COLORADO

- DENVER2 ~

March 5, 1962

ey Case No. 19771

The Colo. Anti-Discrimination

, Comm., et al.,

Vv.

Continental Air Lines, Ince.

The Honorable Duke W. Dunbar,

Attorney General,

‘State Capitol,

Denver, Colorado.

Dear Sir:

On consideration of the petition for rehearing in the

above riumbered and titled cause the court today ordered

the opinion heretofore filed herein modified and as modii- -

fied adhered to, and that thie petition for rehearing be

denied. —e 4 :

Please aoa) the enclosed - page 5 for the liked

numbered page in .the opinion of the court filed in the

above numbered and titled case, February 13, 1962.

Yours very truly,

GEORGE A. TROUT, Clerk.

By "Florence Walsh

Deputy Clerk.

Received March 5, 1962, office of the Attorney General.

\—

| : A

IN THE if

SUPREME COURT OF THE STATE OF COLORAD

¢ 6

Eat ie a onid

The Colorado Anti-Diserimination

Commission, et al., ;

Plaintiffs in Error, saint Mme

4 { District Court

19771 Vs. City and County of

: a ad Denver

Continental Air Lines, Iné@.,

Defendant in Error. :

The court having considered the petitions of plaintiffs

in error for rehearing in said cause, and now being sut-

ficiently advised in the premises, it is this day. ordered

that said petitions be, and the same hereby are, dénied,

By the Court. En Bane. ‘March 5, 1962.

THE

EN BANC

COLORADO ANTI-DISCRIMINA-

TION COMMISSION: and EDWARD

MILLER. MRS. PAUL BUDIN, CLAR-

ENCE C. BELLINGER, GENE MAN-

ZANARES, RGBERT C. KEELER,

GEORGE J. T nd GEORGE,0O.

CORY. as members of said: Commissio

and MARLON D. GREEN,

H Plaintiffs in Error,

Vv.

c ON TINENTAL AIRLINES, INC.,

Defendant in Error.

«!

; Error to the

District Court of the

City and County of

. Denver

Honorable William A. Black, Judge

JUDGMENT AFFIRMED ©

Mr. Duke W. Dunbar, Attorney General, ~

Mr. Frank #. Hickey, Deputy Attorney General,

7 Mr. -‘“harles S. Thomas, Assistant

Attorney Peneral,

Attorneys for Pk intiff in Error

Anti-Discrimindticn Commission.

Mr: T. Raber Taylor,

Attorney for Plaintiff in Error

Marlon D. Green.

Messrs. Holland & Hart, — .

My. Patrick M. Westtfeldt,

. William C. MeClearn,

Warren L. Tomlinson,

Attorneys fu Defend»

Mr.

‘n Error... ;

“2 - —2QI—-

Mr. Burke Marshall,

Assistant Attorney General,

Mr. Harold H. Greene,

Mr. David Rubin,

Attorneys for the- United, States.

: \.

Mr. Arnold Forster-of the New’York Base,

General Counsel, ‘

Mr. Paul. Hartman, of the New York Bar,

Mr. Sol Rabkin, of the New York Bar,

Associate ( ‘ounsel,

Mr. Edwin; J. Lukas, of the New York Bar,

General Counsel,

Mr. Theodore Leskes, of the Now York Bar,

Associate Counsel,

For the American Jewish Committee.

Messrs. Donaldson, Hoffman & Goldstein.

Counselefor the Anti-Defamation League of

B’nai B’rith. |

Mr. Charles Resenbaum,

Counsel for the American Jewish Committee.

? Mr, Mandel Berenbaum, :

Mr. Louis G. Isaagson,

Mr. Pied Mosko,

Mr. James Radetsky,

Afr. Stanton Rosenbaun

Mr. Walter M. ex.

Mr. Anthony F. Zarlengo,

Mr. William S. Powers,

Amici Curiae. °

For the ‘Anti-Defamation ‘League. of B’ nai B’ rith.

MR. JUSTICE MOORE delivered the opinion of the Court.

—22—

Marlon D. Green filed ascomplaint before the Colo-

rado Anti-Discrimination Commission in which he alleged

that the Continental Airlines violated the Colorado Anti-

Discrimination Act of 1957 by refusing to employ him as

an airline pilot on or about July 8, 1957, because he is «

Nego. It was further alleged that’ Continental Airlines

violated the said act in that its forms. of application fer

employment as # pilot contain at least two specificatioris

prohibited by the act, namely, attachment of a photograph

and requiring the applicant to state his race.

After a hearing before the Commission it ordered

that: r

‘The Respondent (Continental) shall give to the

Complainant (Green) the first opportunity to enroll

in its training school in its next course, and the pri-

ority status of the Complainant. shall be fixed as of

June 24, 1957.’’

On review of the commission’s order the district court

held that the Colorado Anti-Disecrimination Act, in so far

as it purported to regulate the employment of flight crew

personnel of an interstate air carrier, was invalid as creat-

ing a burden upon interstate commerce. The trial court

entered a judgment ordering the dismissal of Green’s com-

plaint before the commission. Green and the commission

are here by writ of error seeking reversal of the judgment. ©

: Sf 4

In 1937 the General Assembly enacted the following

statutes — (now C.R.S. °53, 5-1-2, 5-1-3 and 5-1-8).

5-1-2: NAVIGATION OF AIRCRAFT: The pub

lic safety requiring and the advantages of uniform

regulation making it desirable in the interest of aero-

nautical progress that aircraft operating within this

state should conform with respect to design, construc-

tion and airworthiness to the standards now, or here-

after to be preseribed by the United States govern-

ment with respect to navigation or aircraft subject to

its jurisdiction, it shall be unlawfui for any pérson to

navigate an aircraft within the state unless it is li-

censed and registered by the department of commerce

of the United States in the manner prescribed by the

lawful rules and regulations of the United States gov-

ernment then in force. . :

“O-1-5: LICENSE FOR NAVIGATION: The public

safety requiring and the advantages of uniform regu-

lations making it desirable in the interest of aeronaut-

ical progress that a person engaging within this state

in navigating aircraft designated in section 59-2 in

any form of navigation for which license to operate

such aireraft would be required by the United States

government shall have the qualifications necessary for

-obtaining and holding the class of license required

by the United States government. It shall be unlaw-

ful for any person to engage in operating such air-

craft within this state in any form of navigation un-

less he have such a license.

5-1-8: INTERPRETATION: This article shall be:

so interpreted and construed as to effect its general

purpose and to make uniform the law of those states

which enact it and to harmonize as far as possible,

with federal laws and regulations on the subject. of

aeronautics. *

ma Fe

Thus in 1937 the legislature gave recognition to federal

laws and regulations in the realm of aeronautics.

The Colorado Anti-Discrimination Act of 1957 pro-

vides in C.R.S. °53, 80-24-2 (5):

***Kmployer* shall.mean the state of Colorado

or any political subdivision or board, commission, de-

partment, institution or school district thereof, ané

every other person employing six or more employees

‘within the state; * * *"

80-24-6 (2) provides that it shall be an unfair employ-

ment practice, 3

‘*For an employer to refuse to hire, to discharge, to

promote or demote, or to discriminate in matters of

compensation against, any person otherwise qualified,

because of race, creed, color, national origin or an-

cestry.’’

Continental Airlines, among other defenses not neces-

sary to consider, raises the question of whether the Anti-

Discrimination Commission has any jurisdiction over the

subject matter of the action.

It is admitted that Coutinental is a commercial car-

rier by air; that it operates pursuant to a certificate of

publie convenience and necessity issued by the Civil Aero-

nautics Beard. The company provides air transportation

—_95-

for passengers, freight, and United States mail between

the states of Coiorado, Texas, Oklahoma, New Mexico,

Kansas, Missouri, Hlinois and California. Continental was

admittedly engaged in- interstate commerce, and it was

further- agreed that the particular employment sought by

Green involved interstate operations. —

Continental contends that the Colorado statute under

which these proceedings were instituted, as applied to the

facts of this case, is unconstitutional and void under Art-

icle 1, See. 8, elause 3-of the Constitution of the: United

States which provides:

% «

. To regulate

commerce with foreign nations, and among the several

‘The Congress shall have power

states, and with the Indian tribes.’’

Congress has pre-empted the field of law concerning racial

discrimination in the interstate. operations of carriers

(generally and specific: lly with relation to employment of

interstate operating personnel) and has thereby precluded

exercise of authority by the several states in this field.

Fhe trial court adjudged in effect thatthe Colorado

Anti-Discrimination Act cannot constitutionally be ex-

tended to cover the hiring of fligbt crew personne! of an

inters.ate air carrier; that if said Act be applied to the

hiring contracts of usciceain air carriers it would uncon-

stitutionally burden interstate commerce and would amount

to an invasion of a field pre-empted by the United States

under (a) The Railroad Labor Act: (b) the Civil Aero-

nautics Act; and (c) Federal executive orders dealing

with discrimination by employers contracting with the fed

eral government. The trial court entered judgment setting

t23 :

aside the findings of the commission and dismissing

Green's complaint.

’ The United States and certain other group# interested

in the subject matter of the controversy were granted

leave to file briefs as‘amici curiae. In the brief filed by

the Assistant Attorney General wf the United States, argu-

ment is advanced under separate captions as follows:

“I. The Commission's assertion of jurisdiction

herein does not unconstitutionally burden commerce.

“TE. Colorado is not precluded by federal legis:

lative or executive action from applying its anti-dis-

_ erimination policy to the hiring practices, of interstate

air carriers.”’

Counsel for Green, in substance, make the same argument

on the question of whether the State of Colorado has jur-

isdiction to regulate the hiring practices of those engaged

in interstate air transportation. :

With reference to the above stated propositions Con- -

tinental presents Jengthy argument under the following

captions :

“1. The Colorado Anti-Diserimination Act May Not

Constitutionally be Applied to Flight Crew Per-

ap. ‘ sonnel of an Interstate Air Carrier.

‘A. Application of the Colorado Anti-Diserimina

tion Act to the Facts of This Case is Uneon-

stitutional as a Burden on Commerce.

“B. Acts of Congress have Pre-empted the Sub-

: ject Matter of this Litigation, Thereby Pre-

cluding Action by the States.

Although additional arguments on other matters are con-

tained in dhe briefs, they were not determined in the trial

court. The only question resolved was that of jurisdiction.

The trial court determined that the aet was inapplicable

to employees of those engaged ino interstate commerce,

and the judgment was based exclusively on that ground.

The first question to be resolved on this writ of error

ix whether the Colorado Anti-Diserimination. Act may be

applied to flight crew. personne: of an interstate air car-

rier. If the question is answered i the negative —other

arguments directed4o the merits of the acten, and ques.

‘ _tiei<tetating to’ the validity of the aet whe. “tested by

are provisions of the Colorado Constitution, are academic and

of no materiality to the issue to be determined,

The trial court eutered extensive Findings of Facet,

Conclusions of Law and Judgment. As set forth in the

appendix to the brief of Continental, this document. cen-

sists of thirty-eight printed pages. [t is very apparent

that the learned trial judge gave careful consideration to

the numerous decisions of the Supreme Court of the

Inited States which bear upon the-issne. Many of them

are analysed in the judgment entered by the court. The

findings, conclusions and judgment of thet rial court might

well be adopted in tote as the opinion of thes court. Tow:

ever inothe interest of brevity we willafo no tore than

mention a few deeisionsawhbich we think control the result

From the numerous opinions written by the Pited

States Supreme Court dealing with the legality of state

regulation of those engaged in, interstate commerce, two

basic propositions have been firmly established, to-wit:

(1) In those areas of interstate commerce which by

their nature require uniformity of regulation by a single

authority, the states are without power to act even though

Congress has not legislated on the subject; and

(2) In areas of interstate commerce which do not

require such “ufiiformity of regulafion and in which the

states may act because the matters are in some substantial

degree of local concérn; once the Congress does legislate

upon the subject, it pre-empts the field and the. states are

thereafter without power to aet.

An attempt by, the state to apply a statute imposing

burdens or restrictions upon persons engaged in either

of the foregoing areas of interstate commerce will be set

aside and held for naught as contravening the plenary

power of the Congress to regulate interstate commerce.

Cootey v. Port Wardens of Philadelphia, 12 How. 299, 13

L. Ed. 996; Southern Pacific Co. v. Arizona, 325 U.S. 761,

65 S. Ct. 1515; Minnesota: Rate Cases, 230 U.S, 352, 33 S.

Ct. 729. This power in Congress is ‘‘complete in itself,

may be exereised to its utmost extent, and acknowledges

no limitafions, other than as are prescribed in the Consti-

tution.” Gibbons ». Ogden, 9 Wheat 1, 6 L. Ed. 23.

Racial discrimination by an interstate carrier is a

subject which inst be free from diverse regulation by

the several states and governed uniformly, if at all, by

the Congress of the United States. Whatever our private

#77" alll

notions may be on the subject, the opinions of the U. S.

Supreme Court have established the rule.

In Hall v. De Curr, 95 US. 485, 24 L, Ed. 547, (1877),

the court had before it a Louisiana statute which pro-

hibited diserimination in passenger accomodations within

the state. The defendant, owner of a passenger steam-

ship which traveled the Mississippi River between Loui-

siana and Mississippi, had refused certain aecomodations

to a Negro and was sued by her. The court concluded that

the statute as applied to those engaged in the transporta-

tion of passengers among the states was unconstitutional.

The court said, inter alia: \

**But we think it may safely be said that state legis-

lation which seeks to impose a direct burden upon

interstate commerce, or to interfere directly with its

freedom, does encroach upon the exclusive power of

Congress. The statute now under consideration, in

our opinion, occupies that position.”’

In Morgaw vv. Virginia, 328 U.S. 373, 66 S. Ct. 1050,

a statute of the State of Virginia required segregation of

white and colored passengers for both intrastate and inter-

state motor vehicle carriers, An interstate passenger who

was a Negro challenged the validity of the statute as plac-

ing a burden on interstate commerce. The court held that

the statute as applied to interstate carriers was unconsti-

tutional. Hall v. De Curr, supra. was approved in the

following language :

: 6

“The factual “situation set out in) preceding para

zraphs emphasizes the soundness of this court's early

conelusion in Hall v. DeCunir.’

( Younsel secking reversal of the judgment of the trial

court attempt in varidus ways to discredit the opinion of

Hall ve DeCuir. It is asserted in the brief filed by .the

United States as amicus curiae that Hall v. DeCutir was,

‘*handed down seventy-six years prior tu Brown v, Board

of Education, 247 U. 8.0483"; that the case hee ‘long

been eroded and devitalized” and that it.*thas no vitality

today.’

so indicated. Brown v. Board of Education, supra, did

not involve interstate commerce. As recently as 1960

Hall v. DeQuir was cited with ‘approval in Huron Portland

Cement Company v. City of Detroit, 362 U. S. 440, in

which the United States Supreme Court said: ‘‘But a

state may not impose a burden which materially affects

interstate commerce in an area where uniformity of regu-

lation is necessary. Hall v. DeCuir: 95 US. 485.”’

‘Our attention is invited to the fact that the United

States does not consider Hall vy. DeCuir, to be ‘‘devital-

ized’’ in those matters in which application of the-doctrine

_ for which it is authority will promote a result sought by

‘the government. On September 2, 1960, the United States

appearing by counsel, who are on the brief in the instant

case, filed a brief as amici curiae with the. Supreme Court

of the United States in Boynton v. Virginia, 364 U. S.

454, in which we find the following’:

‘*Thus, even in the absence of congressional action,

the Commerce Clause, of its own force, requires in-

validation of unreasonable state-imposed burdens. on

interstate commerce. veg Morgan v. Virginia, 328

373; Hall v. DeCuir, % U. 8. 4..°*°"

Thus it will be seen that ecounsel for the United States,

The Supreme Court of the United States has not

vee

appearing here as amicus curiae, attempts like the Roman

god Janus to face both ways. .

“The State of Colorado either does or does not have

power to legislate concerning racial diserimination by em-

ployers engaged in interstate commerce. The authority

of the state does not come into existence in the event the

exereise thereof will produce a result which may tend to

promote a particular cause and then disappear or become

impotent when the exercise thereof may lead to a different

result. Jurisdiction to function does not depend upon

whiat results will flow from the éxercise of regulatory

°, power. |

The Supreme Court of the United States has clearly

indicated that with reference to interstate carriers the

regulation of—-raeial discrimination is a matter in which

there is a ‘‘need for national uniformity,’’ and that the

states are without jurisdiction to get in that area. Morgan

vr. Virginia, supra.

The judgment is affirmed.

MR JUSTICE FRANTZ, MR. JUSTICE MeWILLIAMS

and MR. JUSTICK PRINGLE, dissent.

No. 19771

Colorado Anti-Disérimination Comm.

Continental Air Lines -

MR. JUSTICE FRANTZ dissenting:

The overriding and cardinal purpose of this case is

to ascertain the relation between federal and state author-

ity based upon the fundaments of the commerce clause

(U. S. Const. Art, 1, $8, ci. 3) and the equal protection

mandate to the states contained in the 14th Amendment to

the Federal Constitution. Is there an area of aeccomoda-

tion between nation and state in which the state may act

affirmatively to see that no one is denied employmént by

reason of his ‘‘race, creed, color, national origin or ances-

try,’ notwithstanding the employment will require travel

over state lines?

The majority opinion believes that: a valid reconcili-

ation is not possible, and that the Colorado Anti-Discrimi-

nation Act of 1957 is imeffectual as to employment con-

tracts of Continental Air Lines, Inc., an interstate com-

mercial carrier by air. Since I do not share this belief, i

voice a view at variance with the majority.

At least five reasons come to my mind which provoke

dissent. There may be other cogent: and perhaps more

convincing reasons for opposing the majority opinion, but

those which move me to disagree are, in my opinion, prin-

ciples established in law and reason. Their application

brings into proper perspective the interrelation of the

two federal constitutional provisions already adverted

—33—

to, and establishes the propriety of the Colorade act as

it affeets Continental's operations. United States vr. Un

derwriters Ass'n., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed.

1440. sy

Before launching into a discussion of these reasons

it would be well to keep in mind that the Colorado Anti

Discrimination Commission had made findings adverse to

Continental, and that these findings are based upon evi-

dence. And the Commission made the critical finding

that the only reason that Ureen .*es not selected for

training school [was] because of his ‘ race. * Tt is sug-

gested that a better understanding of this controversy

will be realized by reading the opinions in Commission vr.

Continental Air Line s, Inc., 143 Colo. 590,°355 P. ( (2d) 83,

to which the present matter is a sequel. )

; ‘ :

I would now enumerate my reasons for holding the |

Colorado act to be in harmony with the commerce clause.

1. A contract of employment is not commerce: it is not an

intangible that enters into the stream of commerce just

because the employee travels from state to state. 2. Con.

ditions of employment, statutorily imposed, forbidding

hiring on the basis of raee, creed, color, Jhational origin

or ancestry are federally recognized as being properly

within the sphere of state police power wee in this connee-

tion inoffensive to the commerce clause, 3. It is a tradi-

tional coneé@pt of the federal government re aw?mploy-

ment contract is ordinarily controlied by the law of the

state where made, “and reasonable regulation of the state

regarding such coutracts will be honered by the nation.

4. State laws prohibiting diserimination on the basis ot

race, creed, color, national origin or ancestry are in aid

of commerce and not a burden on it, and hetiee sanctioned

sae

. ad —34-—

by the federal government. 5. By enacting laws banning

such discrimination the state merely implemeaits and ful-

fills the interdictions of, the 14th Amendment to the na-

jional Constitution, and exercises the power delegated

thereunder to preserve the rights of citizens, required by

“the Federal Constitution to be protected by the states.

gs . . . nie me

“1. A contract of employment of a pilot of an inter-

state carrier by air is not interstate commerce. Such con-

tract per se-does not move in commereé, although the em-

ployment, thereunder requires operation of” airplanes

thréugh several states. If Green had been hired,.at..once

the employment relationship would have been established :

_(ontinentatas employer and Green as employee “would

“have become a fait aceompli. Nothing could be a more

localized activity: the creation of the contract arose within

the state; its existence resulted from an aetivity- wholly

within the state:

rue, that which p Soe would have done as a result

of the estardished relationship would have been interstate

conmmerce. Affording due regard to the distinction be-

_tween the local matter of employment, and the. activities

‘of the employee thereafter as commerce, is not a “strained

and tennous process, Federal courts have recognized that

the mere ‘fact that a “domestic transaction generates a

snovement in interstat® commerce is not sufficient to de-

clare the transaction interstate ecommerce. Jewel Tea Co.

Willams, (10th Cir.) 1184°. (2d) 202.

ee 2 \ . Pnew

Indeed, the federal courts sound warnings against

eneroachment on?state competence. ‘‘If the power to reg

ulate interstate. commerce applied to all *4e ineidents to

which said commerce i Vise to all contracts which

might be made in the course of its transaction, that power

would embrace the entire sphere of mercantile activity in

auny Way-connected with trade between the states, and

would exelude state control oVer many contracts purely

domestic in their nature."* Hooper v. Célifornia, 155 U.S.

648, 15 S.Ct. 207, 39 L.Ed 297. ;

‘Undoubtedly the sce of this power must be con-

ned so as to embrace effects upor inter-

‘so indirect and remote that ts embrace

them, in view of our complex society, woul effectually

obliterate the distinction between what is national and

what is local and create a completely centralized govern-

ment. The question is necessarily one of degree.’’ Na-

fional Labor Relations Board v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R.

1352.

. Although the present problem is one without pat pree-

edent, we are not without straws in the wind. The Su-

premé Court of the United States asked itself ‘‘whether a

state law taxing occupations is invalid so far as applicable

to the pursuit of the business of hiring persons to labor

outside the state limits, because in conflict with the Federal

Constitution.”" (Emphasis supplied.) Williams v. Fears,

179 U.S. 186, 21 S.Ct. 128, 45 L.Ed. 186.

‘

Its answer has relevance to our problem: <7”

eee Phese daber contracts were wot im themselges :

subjects of trattic. beticeen the states, nor was the

business of hiring laborers so immediately connected

with interstate transportation or interstate traffie that

. —36—-

it could be correctly said that these who followed it’

were engaged in interstate commerce, or that the tax

on that occupation constituted a burden on such com-

ss,

meree.’’ (Emphasis supplied.)

‘| Bly the law of New York the creation of an agency

is to be determined by the law of the place where the acts

take place which are relied upon to create it.”? Siegman

9. Meyer, 100 F. (2d) 367. The question of agency ‘‘is to

be determined by the law of New York, because the scope

of an agent’s authority depends upon the law of the place

where the authority is conferred.’’ Per Learned Hand

in Still v. Union Circulation, 101 F. (2d) 11. The place

where the contract of employment is made is controlling

as to the law. Moore v. Ill. Central R. Co., 136 F. (2d)

412; Hablas v. Armour & Co., 270 F. (2d) 71; Helfer v.

Corona Products, 127 F. (2d) 612. |

Contracts for advertising space in a national maga-

zine, though involving publishing advertising and the mail-

ing and distribution of magazines outside the state, are

‘*peculiarly local and distinct from * * circulation whether

or not that circulation be interstate commerce.’’ Western

Live Stock v. Bureau of Internal Revenue, 303 U.S. 250,

58 S.Ct. 546, 82 L.Bd. 823.

‘That which in ‘ts consummation is not commerce

does not become commerce among the states because the

transportation that we have mentioned takes place. To

repeat the illustrations given by the court below, a firm

of lawyers sending out a member to argue a case, or the

Chautauqua lecture bureau sending oat lecturers, does not

engage in such gommerce .because the lawyer or lecturer

=e...

goes to another state”? Federal Baseball Club v. National

League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R.

357.

1 would hold that the contract of hiring, as it estab-

lished an employment relationship, would: have been con-

summated in the State of Colorado and subject to the

domestic laws of the state. Phe fact that Continental en-

waged itself to carry passengers by air through several

states, and that Green would have been a part of the air

flight personnel, would have been an incident of the con-

tract of employment. Continental’s engagement to earry

passengers would have been interstate commerce. Green’s

contract wonld not have been an undertaking to carry A,

B and C as passengers outside the state; his engagement

would have been to werk at a certain position for Conti-

nental.

2. A state ¢ it cactment, having as its objective the pre-

vention of contractual discrimination in employment ema-

nating from prejudice or preference concerning race,

religion, color, national.origin or ancestry, is sanctioned

as the proper exercise of the police power of the state,

even though its effect in particular cases may result in an

impact on interstate commerce. Where the law thus bears

upon such commerce, the federal courts generally find no

invalidating encroachment on the national domain in com-

merce.

That statutory laws prohibiting discrimination on the

basis of color, race, creed, national origin or ancestry in.

connection with certain relationships find validity-in the

police power cannot be controverted. ‘*The exeeution of

this power and the enactment of laws pursuant to it are

—38— :

necessary to the well-being of the people of all civilized

communities.’’ Bolden v. Grand Rapids Operating Corp.,

239 Mich. 318, 214 N.W. 241, 53 A.L.R. 183. See ‘‘Em-

ployment Disertmination,’’ 5 Race Relations Reporter 569

(1960).

Legislation directed against racial or religious dis-

crimination is action ‘‘within the bounds of the police

power.’’ New York State Commission v. Pelham Hall

Apts., 170 N.Y.S. (2d) 750. It is declarative of the state’s

publie policy against discrimination, Application of Ass +-

ciation for the Preservation of Freedom, 188 N.Y.S. (2d)

885; and its purpose is the promotion ‘tof the public

good,’’ City of Chicago v. Corney, 13 Ill. App. (2d) 396,

142 N.E. (2d) 160.

Legislative measures aimed against ‘discriminations

in the areas of employment predicated upon prejudices

and preferences arising out of race, religion, color or na-

tional origin’’ establish a public policy for the state con-

cerning the relationship of employer and employee. U. S.

National Bank v. Snodgrass, 202 Ore. 530,275 P. (2d) 860,

50 A.L.R. (2d), 725. “isl Bad LE Sin

Recognition of such legislation as the exercise of the

state’s police power has been accorded by the Supreme

Court of the United States. *‘And certainly so far as the

Federal Coustitution is concerned there is no doubt that

legislation which prohibits discrimination on the basis of

race in the use of facilities serving a public function is

within the police power of the states.”" District of Colum-

bia v. Thompson Co., 346 U.S. 100. 73 S.Ct. 1007, 97 L.Ed.

1480. See Railway Mail Ass'n. v. Corsi, 326 U.S. 88, 65

S.Ct. 1483, 80 L.Ed. 2072: Bob-lo Excursion Co. v. Mich-

gan, 333 U.S. 28, 68 S.Ct. 358, 92 L.Ed. 455.

Conditions of cimployment between one operating in

interstate commerce and an employee, fixed by the state

under its police power, have been the subject of attack in

the federal courts. Thus, in Smith v. Alabuma, 124 U.S.

465, S S.Ct. 564, 31 L.Ed 508, a statute of Alabama—was

claimed to be in violation of the Bederal Constitution. The

statute made it a misdemeanor for an engineer to operate,

om the state, a train of cars, used for the transportation of

persons or freight without first undergoing an examination

and obtaimng a license from a board appointed by the

Governor. The examination involved the character and

habits of the applicant. Provision was made for denial or

revocation of a license upon certain contingencies ap-

pearing. | :

Smith v. Alabama concerned an engineer whose ordi-

hary run was over the Mobile and Ohio Railroad Com-

pany’s road between Mobile, Alabama and Corinth, Missis-

sippi. He never handled the engine between points wholly

within Alabama. He also operated an engine pulling a

passenger train between St. Louis and Mobile. It was

contended that the statute contravened the commerce clause

of the Federal Constitution.

In disposing of the contention the Supreme Court

said: ; 45

‘In conclusion, we find, therefore, first, that the

statute of Alabama, the validity of which is under

consideration, ix not, Cousidered in its own nature, a

regulation of interstate commerce, even when applied

as in the case under cousideration; secondly, that it

——~ is properly an act of legislation within the scope of

the admitted power reserved to the State to regulate

the relative rights and’ duties of persons being and

acting within’ its territorial jurisdiction, intended to

operate so as to secure for the public, safety of person

and property; and, thirdly, that, so far as it affects

transactions of commerce among the States, it does so

only indirectiy, incidentally, and remotely, and not so

as to burden or impede them, and, in the: particulars

in which it touches those transactions at all, it is not

in conflict With any express enactment of Congress on

the subject, nor contrary to-any intention of Congress

to be presumed from its silence."’

A statute of Alabama provided for the protection of |

ti travelling public against accidents resulting from

color-blindness and defective vision of railroad employees,

and to that end required an examination before a state

board of any person seeking a position that involved the

running or management of a railroad train. Its validity

was cuestioned on the theory that it interfered with inter-

state commerce in the case of Nashville, C. & St. L. Ry. ov.

Alabama, 128 U.S. 96, 9 S.Ct. 28, 32 L.Ed. 352.

The railway company operated its lines through sev-

eral states and had as a train conductor one who had not

secured a certificate of his fitness in compliance with the

Alabama statute. After reaffirming the doctrine enunci-

ated in Smith v. Alabama, supra, the Supreme Court

stated that ‘‘!sluch legislation is not directed against

commeree, and only affeets it incidentally, and therefore

cannot be called, within the meaning of the Constitution. a

regulation of commerce."

a ee

A-state statute pres Sibing a not unreasonable num

ber for the crews of freight trains ‘tis not in any proper

sense a regulation of interstate commerce nor does it deny

the equal protection of the laws. Upon its face, it: must

be taken as not viet ap hiterstate commeree, but

ais having Preven enrceted 4 , wot in obstruction, of such

commerce and for the protection of these engaged in such

commerce." (Emphasis supplied.) @ha ago, BAA a Pac. :

Ry. Co. we Arkansas, 219 US. 453, 31 S.Ct. 275. 55 LK.

200. See Missourt Pacitie Ro Co. vr. Norwood, 283 U.S.

249, 51 S.C. 408, 79 LB. 1010.

A state may preseribe regulations for the payment of

wages of employees of railway carriers, and-so far as such

law ‘taffeets interstate commerce, it does so indireetly."’

Brie R. Co. v. Williams, 233 US. 685, 34 S.Ct. 761. 58° L,

Bd 1155, 51 L.R.A.N.S. 1097. A California statute re-

quired ‘every ‘transportation agent’’ to obtain a license

assuring his fitness and to file a bond securing faithful

performance of the transportation contracts which he

negotiated. Its apparent purpose was to protect the pub-

tic from fraud and overreaching. In California v. Thomp

von, 313 ULS. 109, 61 S.Ct. 980, 85 Lid. 1219, the eourt

held the regulation not to be violative of the commerce

clause, saving:

‘As this Court has often had oceasion to point

out, the Commerce Clause, in conferring on Congress

power to regulate commerce, did not wholly withdraw

from the states the power to regulate matters of local

concern with respect to which Congress has not exer-

eised ifs power, even though the regulation affeets

Inferstate commerce — Eyer <inee Willson vr. Block

Rind Creek Marsh Co., 2 Vor. 245. and Cooley «. Board

-—42--

of Port Wardens, 12 How. 299, it has been recognized

that there are matters of local concern, the regulation -

of whieh unavoidably involves some regulation of

interstate commerce, but which because of their local

character and their nufnber and diversity may never

be adequately dealt with by Congress.”’

These decisions evidence the solicitude of the Supreme

(‘ourt for sustaining the police power of the states in mat-

ters relating to certain kinds of contracts, and in particu-

lar employment relationships, even though the exercise of

such power affects interstate commerce. Citation of these

authorities does not pretend to be exhaustive, but it repre-

sents a good sampling from which we can deduce validity

of the ‘act here under attack. See Colorado Co. v. @olo-

rado Springs, 61 Cole. 560, 158 Pac. 816.

3. Employment contracts are ordinarily of loeal con-

cern, and controlled by the laws of the state where made.

That they have relation to commerce among the states

does not necessarily make them vuinerable to attack as

being made pursuant to state laws which affect commerce.

Legislation regarding contracts, aimed at regulation of

rights, duties and liabilities of the contracting parties; is

properly within the sphere of state activity, and even

though it affects commerce, such impact is deemed indirect

and hence valid. Should the federal government clearly /

preempt the area in which the state has acted, then exelu/

sion of state action takes place. /

Early in its history the Supreme Court of the United

States stated that generally ‘‘the leg ciation of a State,

not directed agaist commerce or any of its regulations,

but relating to the rights, duties, and ‘iab'lities of citizens.

and only indirectly and remotely affecting the operations

oe.

—43—

of commerce, is of obligatory foree upon citizens within

its territorial jurisdiction, whether on land or water, or

engaged in commerce, foreign or interstate, or in any

other pursuit.”” (Emphasis supplied.) Sherlock v. Alling,

Adm...93 US, 99, 23 Lid. 19.

The doctrine of Sherlock vo Alling has been applied

“in later cases decided by the tederal appellate courts. A

resort to Shepard’ United States Citations reveals its

durability. And the doctrine has been applied to statutes

of a.state which impose conditions in order, to effectuate

an employment relationship. Smith v. Alabama, supra;

Nashville, C. & St. L. Ry. v. Alabama, supra; Chicago, R.

I. & Pac. Ry. v. Arkansas, supra. See Richmond & Alle-

aheny R.R. v. Tobacco Co., 169 US. 311, 18 S.Ct. 339, 42-

L.Ed. 759; Chicago, M. d& St. P. Ry. v. Solan, 169 U.S.

133, 18 S.Ct. 289, 42 L.Ed. 688. Last approved in Huron

Portland Cement Co. rv. Detroit, 362 U.S. 440, 80 S.Ct.

813, 4 L.Ed. (2d) 852. ;

~e@

‘In Smith v. Alabama, supra, the eourt was dealing

with state required examination and licensing of loeomo-

tive engineers. In holding the state legislation valid and

inoffensive to the commerce clause, the court expressly

made applicable the above language queted from Sherlock

v. Alling, supra. The sanction of the opinion extended to

‘regulating the relative rights and duties of persons with-

in the jurisdiction of the State, and operating on them,

even when engaged in the business of interstate com-

merece.” (Kinphasis supplied.) —

Right~ and duties settled by contract afford grounds

for state intervention where the state can with propriety

establish a puble poliey regarding them. Partieularly ts

saudi

this true in relation to employment contracts — indeed,

this has been a fertile field in recent years for the ordi-

nation of policy measures. Here personal relations are

furidamental, and the greater ‘the skill required of the em-

ployee, the greater is the personal element involved.

‘A contract is: a juridicially recognized engagement

hetween persons by which their rights and duties concern-

ing a subject matter are established. Dartmouth College-

v. Woodward, 17 U.S. 518, 4 Wheat. 518, 4 L.Ed. 629.

Ordinarily, juridical recognition is a matter of domestic

“concerm And, as already noted, the policy of. the state

may be exerted to require certain conditions in making

the engagement before it shall have a binding effect upon

the parties. :

Rights and duties’ imposed by\the parties upon them-

-selves by agreement are pivotal! concepts ; to the Supreme

Court they have significance in determining whether a

matter presented to it indicates an intrusion on commerce.

If legislation of the state is patently and essentially con-

cerned with the rights and duties of persons, inter se, and

said legislation in particular cases has an incidental or

adventitious impingement on commerce among the states,

the Supreme Court seems inclined to hold it related to a

localized activity, and its influence on commerce not meas-

urably significant.

All the elements necessary to the application of this

doctrine are. here present.--Green is a qualified applicant

’ for a position requiring speci skills. A contract between

Continental and Green would involve these skills, and

hence the personal element creating a special, individual-

to-individual relationship with rights and duties pervading

—45—

it. The generality of the anti-discrimination law, evi-

dently directed to employment generally, without intent to

burden commerce, when brought into perspective: with the

immediate problem of hiring a person with special skills,

leaves us with a law innoxiots to interstate commerce.

4. The Colorado Anti-Discrimination Act is in aid of,

and not a burden’ on, commerce. States may not deny

persons within their jurisdictions the equal protection of

the laws. U.S. Const., XIV Amend. May that which the

states are prohibited from doing become the subject of. «

harmonious, positive legislation by the states? May the

states provide for equal treatment of persons within their

jurisdictions by degislation? If they may, does the fact

that commerce may be incidentally affected, invalidate

such legislation?

‘‘The words of the amendment, it is true, are pro-

hibitory, but they contain a necessary implication of a

positive immunity, or right, most valuable to the colored

race, — the right to exemption from unfriendly legislation

against them distinctively as colored, — exemption from

legal discriminations, implying inferiority in civil society,

lessening the security of .their enjoyment of the rights

which others enjoy, and discriminations which are steps

toward reducing them to the condition of a subject race.’’

(Emphasis supplied.) Strauder v. West Virginia, 100 U.

S. 303, 25. L.Ed. 664. It would appear that friendly legis-

lation is implicitly invited.

State laws having local aspects ‘‘are not, in them-

selves, regulations of interstate commerce, although they

control, in some degree, the condnet and the liability of

those engaged jn such commerce. So long as Congress

—46—

has not legislated upon the particular subject, they are

rather to be regarded as legislation in aid of commerce,

and as a rightful exercise of the police power of the State

to regulate the relative rights and duties of all persons

and corporations within%ts limits’ (Emphasis supplied.)

Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477, 24 S.Ct.

132, 46 L.Ed. 268. Richmond & Allegheny R.R. v. Tobacco

Co., supra; Chicago, M. & St. P.-Ry. v. Solan, supra; Mo-

bile County v. Kimball, 102 U.S. 691, 26 L.Ed. 238.

So long as the federal government has not made clear

its intent to act exclusively in the regulation of an area

of commerce, the nation and the state may march hand

in hand concerning it in advancing parallel policies against

distrimination based on race, creed or color, Bob-lo Ex-

cursion Co. v. Michigan, supra. In a footnote of the

opinion the court says, ‘‘The direction of national! policy

is clearly in accord with Michigan policy.” ninge

5. Colorado has activated the prohibitions of the

Federal 14th Amendment by enacting a law forbidding

discrimination in employment based on race, creed, color,

national origin or ancestry. Under the 14th Amendment

a person has a federal right not to be discriminated

against by the state on the basis of race, color, creed or

national origin; under the Colorado statute the state

creates a similar right running against such discrimina-

tion by anyone, including a private party. What was a

federal right thus becomes a broadened state right by

virtue of the statute. See Abernathy, Expansion of the

State Action Concept Under the Fourteenth Amendment,

43 Cornell L. Quar. 375.

The 14th Amendment is directed against diserimina-

tory state action; the Colorado Anti-Discrimination Act

ix state action, but consistent with, although having a

broader base than, the 14th Amendment. See Bob-lo Ex-

cursion Co. v, Michigan, supra. Ferquson v. Gies, 82 Mich.

BOS. 46 N.W. 718, 21- Am.S.R. 576, 9 L.R.A. 589, indicates

that state laws putting *‘the colored citizen upon an equal

* is nothing

more than the declaration by the states of what the Fed-

eral Constitution ordains.

footing in all respects’with the white citizen

Contention was made in Railway Mail Ass’n v. Corst,

supra, that the New York Civil Rights Law offended the

due process clause of the 14ff Amendment. “It seems to

me that the answer of the Supreme Court is a manifesta-

tion of a view which would hold the Colorado act valid,

as making effectual by state action in an affirmative way

the 14th Amendment. The court said:

nine Sot be We have here a prohibition of diserimi-

nation in membership or union services on account of

race, creed, or color. A judicial determination that

such legislation violated the Fourteenth Amendment

would be a distortion of the policy. manifested in that

amendment, which was adopted to prevent state legis-

lation designed to perpetuate diseimuination on the

basis of race or color. We see no constitutional basis

for the contention that a state cannot protect workers

from exclusion solely on the basis of race, color or

creed by an organization, functioning under the pro-

tection of the state, which holds itself out to represent

the general business needs of employees.”’ :

Since it is seriously doubted whether the federal gov-

“ernment has assumed exelusive control of the employment

vee

— ee po

in question, we should heed these words in the decision of

Railway Mail Ass’n v. ares, supra: © iy

‘*This provision can-hardly be deemed to indicate ...

‘an intent on the part of Congress to enter and com-. %

pletely absorb the field of regulation of organizations

of federal employees. Congress must clearly manifest

an intention to regulate for itself activities of its, em-

ployees, which are apart from their governfnental

duties, hefore thé police power of the state is power-

esa ’? (Emphasis supplied.)

No ae clear manifestation appears in this case.

In the course of this opinion I have accepted as fact

that the Anti-Discrimination Act will on oceasion exert an ~

influence on commerce among the states. The act was de-

signed to accomplish a purpose wholly within the letter.

and spirit of the 14th Amendment, and contains no excep-

tion as to employment involving duties requiring move-

ment between states. In this respect interstate commerce

will be affected, but uot detrimentally. How can it be con-

tended that state action which is obedient to the 14th

Amendment does anything other than aid commerce? ,

Had the federal government clearly acted against dis-

crimination in manner showing that preemption had taken

place, the state would have no authority to act. But, as

Justice Doyle demonstrated in his specially concurring

opinion in Colorado Anti-Discrimination Commission v.

Continental Air Lines, Inc., supra, no federal preemption

has been effected. /

MR JU STICE McWILLIAMS ietiestiee me to say

that he/eoncurs in this dissent. |

/ ake

;

—49—

» Appendix B

, BEFORE THE

COLORADO ANTI-DISCRIMINATION COMMISSION

655 Broadway

Denver 3, Colorado

| (cee

No. 25

Marlon D. Green, :

Complainant,

vs. . .

Continental Airlines, Ine. :

Respondent.

} 4

for complaint against the Respondent above named, Cum-

plainant alleges:

1. That Respondent, Continental Airlines, Inc., a pri-

vate employer, whose address is Stapleton Airfield,

Denver, Colorado, and who is engaged in the business of

operating a commercial airline, has violated the Colorado

Anti-Discrimination Act of 1957 in the following respects:

2. That on or about July 8, 1957, Respondent refused

to employ Complainant as a commercial airline pilot be-

cause he is a Negro.

3. That Respondentltailed to advise Complainant as

/to the action taken on his application for. employment

within the ten-day period of time between June 26, 1957,

the completion date of interviews and flight tests, and

July 5, 1957, as promised:

4. That Respondent's Application for Employment

form contains at least two specifications prohibited by the

Colorado Anti-Diserimination Act of 1957, viz.. attach

ment of photograph and applicant's race.

WHEREFORE, the Complainant requests the Colo.

rado Anti-Diserimination Commission to use whatever

powers are at its command to eliminate the foregoing al-

leged discriminatory or unfair employment practices; and

for such other and further relief as may be within the

Commission’s jurisdiction.

Complainant’s address :

913 Nipp Street

Lansing, Michigan

: /s/ Marlon D. Green

¢ Marlon D. Green, Complainant

Subseribed and sworn to before me this 13th day of

Aug. 1957, by Marlon D. Green.

My cormission expires March 8, 1958

s H. Marie Brower

- Notary Public’

(Seal) Notary Stamp

-ol-

Appendix C

BEFORE THE

COLORADO ANTI-DISCRIMINATION COMMISSION

OF THE STATE OF COLORADO

No. 25

Marlon D. Green, :

Complainant, FINDINGS OF

FACT,

vs. > , , ;

CONCLUSIONS OF

(Continental Airlines, Ine. LAW and ORDERS

Respondent.

RE GREEN, COMPLAINANT V. CONTINENTAL

AIR LINES, INC., RESPONDENT.

The Complainant-alleges a violation of the Colorado

Anti-Diserimination Act of 1957, basically in the allega-

tion that the Respondent refused to employ the Complain-

ant as.a commercial air line pilot because he is a Negro.

The Respondent denies that it has violated the Act. It

question. the jurisdiction of this Commission and the

constitutionality of the Act.

The Complainant is a resident of 608 North Logan,

Lansing, Michigan and ix presently engaged as the De-

partment Pilot for the Michigan State Highway Depart—

men'.

The Respoadent is a duly authorized and certificated

dice

commercial carrier by air and maintains an office at Stap-

leton Airfield, Denver, Colorado.

Complainant filed application for employment as a

pilot with the Respondent on April 30, 1957; the apph

cation contained a request for two photographs of head

and shoulders not over 1! x 21% inches taken within the

last 12 months and which application also had a space for

racial identity.

At the time Complainant made application for em-

ployment with Respondent, he was a rated pilot so desig-

nated by the U. S. Air Force, as of 24 Mareh 1951.

Complainant durin’ his military career had flown the

T-6 Trainer, the B-25, the B-29, the B-26, the 5A-16, the

C-45 or Twin Beach, the C-97 and C-47.

The Complainant as of June 26, 1957 had logged

3,071 hours flying time as evidenced by Air Force Form 5,

on file with the Director of Flight manta de Research, Norton

Air Foree Base, California.

—

Complainant’s rank when discharged from the Air

Force was that of Captain.

-Complainant-arrived in Denver, June 24, 1957 for em-

ployment interview. with Respondent.

Complainant was directed by Captain Cramp to the

link trailer department for a check ride in the link trainer.

On the following day Complainant took a flight check

with Captain Cramp and after the flight cheek, was ad-

vised that he could return to Lansing, expecting the reply

from Respondent in about ten days.

Complainint Was not selected for the July taining

class; Complainait’s application was kept/in a file of ell-

z —,

a.’ i

gible cheeked out-pilots. He was still retained as an eli-

gible candidate for pilot position. It was admitted that

he was a good pilot and met Respondent’s minimum quali-

fications. :

Complainant's application was withdrawn from fur-

ther considevation in the early part of August because

Respondent was made aware of some publicity appearing

in the Albuquerque Journal of August 4. °

The Respondent is guilty of a discriminatory and un-

fair employment practice in requiring on its application

form, the racial identity of the applicant and the require-

ment of a photo to be attached to the application, each of

which is contrary to regulations adopted by this Commis-

sion under Section 4, sub-section 2 of Chapter 176, Session

Laws, of 1957, also known as the Colorado Anti-Diserimi-

nation Aét of 1957.

From the applications submitted to the Commission

for review, we find: — :

Applicant, Marlon D. Green with a to.al of 3,0%1 :30

flying hours with multi-engine equipment.

Applicant No. 2 with a total of 1,150 flying hours.

App.icant No. 3 with a total of 1,000 flying hours in

single engine equipment, mostly jet. =

Applicant No. 4 with a total cf 2,100:53 flying hours.

Applicant No. 5 with-a total of 1200 flying hours, in

multi-engine equipment.

Applicant No. 6 with o total of 1031 flying hours in

single engine equipment. :

Based on a review of the applications for employment

— 5

of the several persons interviewed at the time Mr. Green

was interviewed, it appears that Complainant had more

flying hours than any other applicant and was better qual-

ified for the position of co-pilot than any applicant inter

viewed, but was not hired becuse of the diseriminators

act of Respondent.

In spite of the fact that the Respondent properly as.

serts that this position is an extremely important one,

dealing with human lives as it does, thesevidence does not

show that the Respondent exercised extreme care in the

selection of the applicants for the training school; on the

contrary it was difficult, if not impossible to determine

from the Regpondent s testimony. although the witnesses

were asked repeatedly, who was charged with the selection

of the successful applicants. The exidence is conclusive -

on the basis of the testimony that the only reason that the

Complainant was sot selected for the training school was

because of his race.

CONCLUSIONS OF LAW

The Commission assumes constitutionality of the law.

The Commussion has jurisdiction te hear the complaint.

- —

The Commission finds that there is a violation asx

charged in the complaint.

ORDERS

The Complainant has requested this Commission to

withdraw his complaint. Rule 2 (j) of the Rules of the

Commission provides with respect to withdrawal as fol-

lows: ‘6

the case has been noted for hearing the written consent of

if the request for withdrawal is made after

a majority of the hearing examiners shall be obtained."

—

A majority of the hearing examiners have not consented

to such withdrawal. “Accordingly it is hereby ordered as

follows: | nee j

— The Respondent shall ceas® and-desist from such dis

oar 7 ~ “

criminatory and unfair cmployment: practice.

The Respondent: shall give to-the Complainant. the

first opportunity to enroll in its training school in its next

course, and the priority status of the Complainant shall

le fixed as of June 24, 1957.

In view of Complainant's request that his complaint

herein be withdrawn, he is direeted to advise this Commis-

sion in writing of or before January 10, 1959 of his will-

ingness to enter the next pilot training course to be con

ducted by Respondent. In the event of Complainant's

failure so to do the Respondent wil) be released of the

obligation of the order entered herein to piace him in such

elass. dn the event Complainant elects within the time

mnentioned to enter such class, the Commission shall advise

the Respondent of sneh election and thereupon such writ

ten advice to the Respondent shall be deemed the service

of an order of the Commission pursuant to Section 6 of

the Act, and Respoudent shall be allowed thirty (30) days

from the service of such oraer in which to file its statu-

tory petition for review in the district court under the

’

provisions of Section 7 of the Act.

The Commission retains jurisdiction of ‘the matter

under the provisions of the Aet.

BY ORDER GF THE COMMISSION

~ Rov M /AChapman

Coordinator S27\

\/ (Seal }

, 9

a —56—

Appendix

IN THE DISTRICT COURT IN AND FOR THE

CITY AND COUNTY OF. DENVER

STATE OF COLORADO

Civil Action No. B-29648

CONTINENTAL AIR LINES, INC.,

Petitioner,

vs.

COLORADO .ANTI- DISCRIMINATION

COMMISSION, and : FINDINGS OF FACT

EUYUWARD MILLER, MRS. PAUL BUD- CONCLUSIONS OF

IN, CLARENCE C. BELLINGER, GENE LAW AND

MANZANARES, ROBERT C. KEELER, JUDGMENT

GEORGE J. WHITE, and GEORGE 0O.°* ;

CORY, Commissioners of said Commis-

sion, and

MA RLON D. GREEN,

Respondents.

This matter coming on for review o! the proceedings

and Order of the Colorado Anti-Discrimination Commis-

sion in the matter of Marlon D. Green, Complainant vs.

Continental Air Lines, Inc., Respondent, and the Court

having reviewed the record, and havir heard arguments

of counsel, and having read the briefs of Mr. T.. Raber

Taylor, for Marlon D. Green, Complainant, Mr. Charles

S. Thomas, for the Commission, and Messrs. Patrick M.

Westfeidt, Mr. Wilham C. McClearn, and Mr. Warren L.

Tomlinson, of Holland & Hart, for Continental Air Lines,

Ine.,

DOTH FIND:

That the Complainant, Marlon D. Green, fiied a com-

/ _

a ie

plaint against Continental Airlines, Ine., on August 123,

1957, alleging, in substance, as follows:

1. That Continental, Airlines violated the Colorado

Anti-Diserimination Act of 1957 by refusing to employ

him as an airline pilot on or about July 8, 1957, because

he is a negro;

2. That Continental failed to notify him as to their

acceptance or rejection of his application as an airplane

pilot within 10 days, as promised; and

3. That Continental violated the Act because its

forms contain at least two specifications prohibited by the

Colorado Anti-Discrimination, Act, vis.; attachment. of

photograph and requiring applicant to state his race.

The Commission, after a hearing, entered the follow-

ing Order:

6e@ Se @e@ee

The Respondent (Continental) shall-give to the Com-

plainant (Green) the first opportunity to enroll in its

training school in its next course, and the priority

status of the Complainant shall be fixed as of June

24, 1957.”’

Continental Airlines apy aled from the ruling on sev-

eral grounds, which the Court will hereinafter review.

The Colorado Legislature, in 1937, enacted the follow-

ing law:

1953 — CS. A. 2-1-1: SHORT TITLE: This art-

-icle is known and may he cited as *The Aeronauties Act

of 1937°."” Van oe

“O12 NAVIGATION OF ALROCRAFT: The pub

lie safety requiring and the advantages of uniform

yoreq .

a ee

regulation making it desirable in the interest of aero-

nautical progress that aircraft operating within this

state should conform with respect to design, construc-

tion and airworthiness to the standards now, ‘or here-

after to be prescribed: by the United States govern-

ment with respect to navigation of aircraft subject to

its jurisdiction, it shall be unlawful for any person

to navigate an aircraft within the state unless if is

licensed and registered by the department of com-

merce of the United States in the manner prescribed

by the lawful rules and regulations of the United

States government then in force.

5-1-3: LICENSE FOR NAVIGATION: The pub.

lie safety requiring and the advantages of uniform

regulations making it desirable in the interest of aero-

nautical progress that a person engaging within this

-state in navigating aircraft designated in section 5-1-2

in any form of navigation for which license to operate

such aireraft would be requiged by the United States

government shall have the qualifications necessary for

obtaining and holding the class of license required by

the United States government. It shall be unlawful

for any person to engage in operating such aircraft

within this state in any form of navigation unless he

have such a license.

oceeee#

5-1-8: INTERPRETATION: This article shall be

so interpreted and construed as to effect its general

purpose and to make uniform the law of those states

which enact it and to harmonize as far as possible,

with federal laws and regulations on the subject of

aeronauties.”’

—_— =

| This Court musi recognize that as early as 1937, the

Colorado legislature recognized federal laws and regula.

tions on the subject of, aeronauties.

The Colorado Anti-Diserimination’ Aet of 1997 pro

vides: |

2 a ‘

: e

+s @ @ @ee

! .

(9) ‘Employer’ shall mean the state of Colorado

or any politieal subdivision or board, commission, de-

| .

partment, mstitution or school district thereof, and

* . >

every other person employing six or more employees

within the state: * * * * *,""

It will be thas seen, from the above provision, that

the Colorado legislatue was not attempting to legislate

concerning problems involving interstate commerce.

The evidence showed the Complainant, Green, received

‘an application blank’? from Continental Airlines in San

Francisco, at which time he was a citizen of Arkansas: he

Was interviewed in Denver; at the time he made a com-

plaint, namely, August 13, 1957, he was a resident of the *

State of MicLigan (folio 1), and he was not a licensed

pilot mnder the federal law, nor under the Colorado Aero-

nautical Act, and did not become one until September 27,

1957 (folio 16), at which time he gave his residenee as

734 South Smith Avenue, El Dorado, Arkansas. —

It further appears that Green had filed complaints

against United Airlines for unfair labor practiees in the

States of Washington, New York and the District of Co-

lumbia. In Michigan, he filed similar complaints against

Gieneral Motors, Francis Aviation, and Abrams Aerial

Survey Corporation. /In Washingtoa, DC. Green tiled

similar complaints with the President’. Committee ou Gov

fod ‘

- « i

wg ce apse

_erament Contracts against Capital Airlines and the Air

Division of General Motors.

¢ This Court has not: been advised of of

thes¢ complaints; nor is it important that it,has not been

so advised. ;

_ Confinental Airline’s first and second claims for re-

lief, which attack the jurisdiction of the Commission and

raise a Constitutional issue, are directed to the same basic

*“ legal issue and may properly be considered together. The

facts upon which this issue is predicated were the subject

of a Court- approved stipulation between the parties and

are as one : ; = Nan, }

Continental is a commercial carrier by air, operating

_ pursuant ‘to a c@rtificate of public: convenience and neees-

“sity issued by the Civil Aeronautics Board. It provides

air transportation for, passengers, freight and United

is States: mail between the states of Colorado, Texas, Okla-

‘pilots were stationed in Texas. Not

homa, New Mexico, Kansas, Missouri, Illinois and Calif-

ornia. Cgntinental was admittedly engaged in interstate

commerce and it was further agreed that the position with |

Continental for which Réspondent,, Green, applied involved

interstate operations— At the time of the heaging before

the Conimission, Contiftttal employed approximately 220

pilots, of whom’ 90.'to 95. were based in te The other

rithstanding these

facts, the Comms@sion asserted jurisdiction to hear and

. determine Respondent ‘fareen’ s cémplaint against Conti-

nental.

~The constitutional issue presented in this case_is not

whether the State of Colorado had the general authority,

pursuant to its police power, to enact the Colorado Anti-

Discrimination Aet. The question is whether ‘the Act. may

inl :

legally be applied to the interstate operations of Conti-

nental involved in this proceeding.

Continental maintains that the Act, as applied to it

on the faets of this case, is unconstitutional and void under

the provisions of Article I, Section °8, Clause 3, of the

United States Constitution, which reads as follows:

“The Congress shall have power... (Clause 3) To

regulate Commerce with foreign Nations and among.

the several States and with the Indian Tribes; * * *”’

Congress has pre-empted the field of law concerning racial

discrimination in the interstate operations of carriers

(both generally and spectfically with relation to employ-

ment of interstate operating personnel) and has thereby

precluded exercise of authority by the several states in

this field.

The applicable rules of law on the constitutional is-

sues are:

- Pa ;

(a) In those areas of interstate commerce which

._ by their nature require uniformity of regulation by

. x .

a single authority, the states are without power to

act even though Congress has not legislated on the

subject; and

(b) In areas of interstate commerce, wkich do

-not require such uniformity of regulation and in which

the states may act because the matters are of peculiar

local concern, whenever Congress does, by legislation,

oceupy the field, the states are thereafter without

err" to act.

In either (a) or (b) above, an attempt by a state to

Continental further contends that the United States.

—§2—

are

act is unconstitutional as a ‘violation of the commerce

clause of the United States Constitution and attempts of

state agencies ‘to apply such statutes are void and of no_

force and effect. :

Congress has the power to regulate interstate. coms

merce. Article 1, Section-8, Clause 3, United States Con-

stitution. Early in the-history of this.country, the United

States Supreme Court held that the power of Congress to

regulate. interstate commerce was supreme and plenary.

The power is ‘‘complete in itself, may be exercised to its

utmost extent, and acknowledges no limitations, other than

as are prescribed. in the Constitution.’’ Gibbons vs. Ogden,

9 Wheat. 1, 196, 6 L.Ed. 23,70 (1824). This rule has |

never been altered and is today fully applicable.

The power of the Congress over interstate commerce

does not mean that the States are completely without

power to legislate in that field. In another early case, the

United States Supreme Court held that in the absence of

, federal legislation regulating a particular area of com-

merce, the States could legislate on matters of peculiar

local concern if the impact on interstate commerce did

not interfere with the operation of that commerce. Cooley

vs. Port Wardens of Philadelphia, 12 How. 299, 13 L.Ed. 996

(1851). However, even when the Congress has not acted,

States may not regulate matters which, because of their

nature, require national uniform treatment. Southern Pa-

cifie Co. vs. Arizona, 325 U.S. 761, 65 S.Ct. 1515 (1945).

These rules were expressed as follows by the United

States Supreme, Court in the Minnesota Rate Cases, 230

U.S. 352, 33 S.Ct. 729.1913) : :

se - . . ae 2

—+The grant in the Constitution of its own force, that

is, without action by Congress, established the essen-

, s

_tial immunity of interstate commercial intercourse

from the direct control of the states with respect to

those subjects embraced within the grant which are of

such a nature as to demand that, if regulated at all,

their regulation should be preseribed by a sifgle auth-

ority. It has been repeatedly declared by this court

that’ as to those subjects which require a general

system or uniformity of regtlation, the power of Con-

gress bs exclusive. In other matters? admitting of

diversity of treatment according to the special re-

quirements of local conditions, the states may act

within their respeetive jurisdictions until Congress

sees fit to act; and, when Congress 7.08 aet, the ex-

ereise of its authority overrides all conflicting state

& legislation. * 3a. B.Ct . at 740.

Although ‘ongress has legislated extensively in the

area of racial discrimination with reference to interstate

air transportation and has thereby withdrawn this field

from regulation by the several states, the Court will first

consider whether racial discrimination by an interstate

carrier is a subject which (a) must be free from diverse.

regulation by the several states and governed uniformly,

if at all, by Congress, or (b) whether it is a matter of

primarily local concern upon whieh the states ean legis-,

late until, but not after, Congress actss. The United States

* Supreme Court has clearly and directly ruled that this is

a matter permitting. only national action. Attempts by

states cither (a) to impose discrimination on account of

race, or (b) prohibit such diserimination, have been held

nnconstitntional as applied to interstate: carriers.

In Mall vs. DeCuir, 95 US. 485, 24 L.Ed. 547 (1877).

the court had before ita seine statute which prohih

; a

ited. discrimination in passenger accommodations within

the state. The defenadnt, owner of a passenger steamship

‘ which traveled the Mississippi River between Louisiana

and Mississippi, had refused certain accommodations to a

Negro and was sued by her. The Court concluded that

the statute as applied to those engaged inthe transporta-

tion of passengers among the States was unconstitutional.

The Court said:

‘*But we think it may safely be said that state legis-

lation which seeks to impose a direct burden upon

interstate commerce, or to interfere directly with its

freedom, does encroach upon the exclusive power of

Congress. The statute now under consideration, in

out, opinion, occupies that position. It does: not act

upon the business through the local instruments to be

employed after coming within the state, but directly

upon the business as it comes into the state from

without or goes out from within. While it. purports

only to control the carrier when engaged within the

state, it must necessarily influence his conduct to some

extent in the management of his business throughout

his entire voyage.* ** _

‘It was to meet just such a case that the commercial

clause in the Constitution was adopted. The River

Mississippi passes through or along the borders of

ten different states, and its tributaries reach many

more. The commerce upon these waters is immense,

and its regulation clearly a matter of national con-

cern. If each state was at liberty to yegulate the

conduct of carriers while within its jurisdiction, the

confusion likely to follow could not but be productive

of great inconvenience and unnecessary hardship.

—§5— as

Each state could provide for its own passengers and

regulate the transportation of its own freight, regard-

less of the interest of others. Nay more, it could pre-

seribe rules by which the earrier must. be governed

within the state in respect to passengers and property

brought from withoyt. On one side of the River of

its tributaries he might be required to. observe one

set of rules, and on the other, another. Corfimerce

cannot flourish in the midst of such embarrassments.

No carrier of passengers can conduct his business

with satisfaction to himself, or comfort to those em-

ploying him, if on one side of a state line his passen-

gers, both white and colored, must be permitted to

oecupy the same cabin,sand on the other side be kept

separate. Uniformity in the regulations by which he

is to be governed from one end to the other of his

route is a necessity in his business, and to secure it

Congress, which is untrammelled by state lines, has

been invested with the exclusive legislative power of

determining what such regulations shall be.’’

The soundness of Hall vs. DeCuir was expressly re-

affirmed by the United States Supreme Court in 1946.

Morgan vs. Virginia, 328 U.S. 373, 66 S.Ct. 1050 (1946). *

Here a Virginia statute required segregation of white and

colored passengers for both intra-state .and interstate

yhotor vehicle carriers. A negro passenger making an

interstate trip challenged the validity of the statute as a

burden on interstate commerce. The Court found that the

statute, as applied. to interstate earriers, was uneonstitu-

tional. The Court reaffirmed the doctrine of Hell rs. De-

Curr in the following langnage :

The factual situation set out in preceeding para-

ae | Pr

——y

graphs emphasizes the soundness of this court's early

conelusion in Hall vss DeCuir, 95 U.S, 485, 24 L.Ed.

247."’ 66 S.Ct. at 1057. ee

In conclusion, the Court said:

‘It seems clear to us that seating arrangements for

the different races in interstate motor travel reqtire

a single, uniform rule to promote and protect national!

travel. Consequently, we hold the Virginia statute in

controversy invalid.’’ 66 S.Ct. at 1058,

Justice Frankfurter, concurring in the Court’s de-

cigjon, stated:

‘*My brother Burton has stated with great force rea-

sons for not invajidating the Virginia. statute. But

for me Hall vs. DeCuir, 95 U.S. 485, 24 L.Ed. 547, i

controlling. Since it was decided nearly 70 years ago,

that ease on several occasions has been approvingly

cited and has never been questioned. Chiefly for this

reason I concur in the opinion of the court.

‘*The imposition upon national systems of transpor-

tation of a crazy-quilt of State laws would operate to

‘Durden commerce unreasonably, w vhether sifch contra-

\dictory and confusing State laws concern racial

commingling or racial segregation.’ 66 S.Ct: at 1059.

The rule first set forth in Hall vs. DeCuir and reat-

firmed in Morgan vs. Virginia, namely, that state regula-

tion of the racial policies of interstate carriers constitutes

a burden on interstate commerce because this area de-

mands a ‘‘single, umform rule to promote and protect

- national travel” has been often approved and applied.

For example, in Chance vs. Lambeth, 186 F.2nd 879 (4th

Cir. 1951), the Court held at Gregulation which required

ro) - —67—

segregation of intérstate passengers on a railroad to be

unconstitutional because it imposed a burden on interstate -

commerce. The Court,said :

6 In Hall vs. DeCuir, 95 US. 485, 24 L. Ka. 547, the

court held that a statute of Louisiana which required

a carrier to give all persons traveling within ‘the ~

state upon public vehicles equal rights and privileges

was an unconstitutional regulation of interstate com _

merce since otherwise each state would be at libérty/ >

to regulate the conduct of carriers while in its juris-

diction, resulting-in- great confusion and inconvenience

and destroying the uniformity necessary to the oper-

ation of the carrier's Lasiness.’? 186 F.2d at 881.

Also following the rule of Hall vs. DeCuir and Morgan vs.

Virginia are Charles vs. Norfolk & Western Railway Co.,

188 F.2d 691 (7th Cir. 1951); Whiteside vs. Southern Bus

Lines, Inc., 177 F.2d 949 (6th Cir. 1949); William vs.

Carolina Coach Co., 111 F.Supp. 329 (E.D.Va. 1952), aff’d

207 F.2d 408 (4th Cir. 1953).

In Pryce vs. Swedish-American Lines, 30 F, Supp. 371

(S.D.N.Y. 1939), plaintiff brought an action for damages

against defendant shipline, alYeging that it discriminated

against her because of her color in violation of the New

York civil rights law ‘‘while she wax a passenger on de-

fendant's vessel on a cruise from New York City to var-

ious South American ports and return.’’? Defendant was

. e ; " ° a :

a Swedish corporation and the vessel involved Was under

Swedish registry.

As one of two grounds for dismissing plamtiff’s eom-

plaint, the Court said:

There is, however, an even more ‘compelling reason

for refusing to apply Sections 40 and 41 of New York

Civil Rights Law to the facts set forth in the second

cause of action. To do so, would in effect be constru-

ing the statute as forbidding discrimination between

passengers on the part of common carriers engaged

in commerce between the port of New York and for-

‘ign ports. If construed in such a manner, the statute

teadoubtedly would illegally interfere with foreign

commerce. See Hall vs. DeCuir, 95 U.S. 485, 24 L.Ed.

47." 30 F.Supp. at 372. i

The Pryce case is a clear holding that to apply a state

law forbidding racial discrimination to interstate or for-

eigu commerce constitutes an unlawful interference wifh

that commerce,

The important point is that the foregoing cases stand

for the proposition that the question of racial discrimina.

tiop by interstate carriers is, in and of itself,-of such a

nature that uniform regulation by a single authority is

required. .The burden on commerce lies in subjecting in- Fi

terstate carriers to the law-making powers of the legis-

latures in the several states through which such carriers

move. The foregoing cases and others show the practical

obstructions and burdens that result fron. such diversity

of regulatory power. The diversity of this regulatory

power is the burden on interstate commerce which is un-

constitutional.

All of the states of the United States are sovereign

within. constitutional limits. What any particular state

law is today.or what it may be tomorrow, and whether or

not any one or more of such states tave any laws on the

subject is of no significance. Uf an interstate carrier is

subject to the regulatory power of all of the states through

—9—

”

which it passes, it is automatically subject to non-uniform

regulation. Such non-uniform regulation is what the United

States Supreme Court has held to be barred by the com-

merce clause. Geek}

Respondent, Green, relies principally upon two cases,

which the Court will diseuss.

; \

In Bob-lo Excursion Co. v, Michigan, 333 U.S. 28, 68

S.Ct. 358 (1948), a conviction under a M ichigan civil rights -

statute was upheld. Defendant had refused to permit a

Negro on-its excursion boat. which traveled between De-

troit, Michigan, and Bois Blane, Island, a small island in

the Detroit River about 15 miles from Detroit. Bois Blane

Island, which was almost entirely owned in fee by defend-

ant and was used by it astan amusement park, was techni-

cally across the international boundary in Canada. How-

ever, there was no access to the island from Canada or in

any way other than on defendant’s excursion boat. The

opinion does not indicate that defendant held a certificate

_of public convenience and necessity from any federal

agency. Based upon these facts it was held that defend-

ant’s conviction under the Michigan statute did not violate

the commeree clause in -the- United States Constitution.

But the Court carefully limited its holding to the unusual

‘Of ‘course, we must be watchful of state intrusion

into intercourse between this country and one of its

neighbors. But if any segment of foreign commerce

can be said to have a special local interest, apart from

° the necessity of safeguarding the federal interest in

such matters as immigration, customs and navigation,

the transportation of appellant's patrons falls in that

characterization. It would be hard to find a substan-

—70—

tial business touching foreign soil or mgye highly

local concern.’’ 68 S.Ct. at 361-62.

In addition, the Court took pains to carefully distinguish

the unique Beb-lo situation from the doctrine established

by the Morgan and Hall cases. It said: B

‘*Appellant hardly suggests that the power of Con-

gress over foreign commerce excludes all regulation

by the states. But it verges on that view in regard-

ing Hall vs. DeCuir, 95 U.S. 485, 24 L.Ed. 547, supple-

mented by Morgan es. Virginia, 328 U.S. 378, 66 S.Ct.

1050, 90 L.Ed. 1317, 165 A.L.R. 574, and Pryce vs.

Swedash-American Lines, D.C., 30 F.Supp. 371, as

flatly controlling this case. We«eed only say that

no one of those decisions is comparable in its facts,

whether in the degree of localization of the commerce

involved; in the attenuating affects, if any, upon the

commerce with foreign nations and’ among the several

states likely to be produced by applying the state reg- |

ulation ;, or in afiy actual probability of conflicting .

regulations by different sovereignities. None involved

so completely and locally geal a segment of for-

eign or interstate commerce. In none was the busi-

ness affected merely an adjunct of a single locality or

community as is the business here so largely. And in

none was a complete @xclusion from passage made.

The Pryce’ case, of course, is not authority in this

Court, and we express no opinion on the problem it

presented. The regulation of traffic along the Missis-

sippi River, such as the Hall case comprehended and

of interstate motor carriage of passengers by common

carriers like that in the Morgan case, are not fact-

ually comparable to this regulation of appellant's °

aon

highly localized business, and those decisions are not

relevant here.” 68 S.Ct. at 363-364.

iv.

Smee

It is thus quite clear that the U. S. Supreme Court

did not intend to detract from nor diminish the doctrine |

of Morgan and Holl, It is equally apparent that the facts

in the -present case, involving frequent high-speed air

transportation between cight states pursuant to certifica-

tion from the Civil Aeronautics Board, are much ‘more

akin fo the transportation involved in Morgan and ‘Hall

than to the highly local, non-commercial ttaffie with which

Bob-lo was concerned. ;

During oral argument before thisgCourt, Respondent,

Gireen, indicated primary reliance upon Railway Mail As-

sociation vs. Corsi, 326 U.S. 88, 65 S.Ct. 1483 (1945). The

Corst-case did not in any way involve the commerce clause

of the U. S. Censtitution. Cor'si, interpreted most favor-

ably to Respondents, only held neither the due process

clause of the 14th Amendment, nor the equal protection

clause, nor the clause conferring authority “over postal

matters upon Congress prevented a state from adopting

a civil rights statute. The application of such a statute

to interstate commerce was neither raised nor discussed

nor - decided. ee

F ; gs

There is perhaps less permissible state regulation of

interstate transportation than any other area of commerce.

. The characteristics of interstate transportation, namely,

definite, regular and frequent contacts with numerous

states, require that many aspects of interstate transpor-

tation be left free from state regulation. The speed and

complexity ‘of lotig-distance air transportation renders it

even less susceptible to ~tate regulation than the river

- boat travel involved in Hall vs. DeCuir, or the motor

vehicle transportation in Morgan vs. Virginia.

The foregoing cases hold that the states may not reg-

ulate the racial policies of the interstate operations of

carriers, and they are consistent with a body of law reg-

ulating interstate commerce which has been developed and

uniformly applied for nearly 150 years.

In Southern Pacific Co. vs. Arizona, 325 U.S. 761,

65 S.Ct. 1515 (1945), the Supreme Couit declared uncon-

stitutional the Arizona Train Limit Law which prescribed

the maximum number of passenger and freight cars for

trains operating in the state. The Court reiterated famil-

iar rules when it said: » ~ |

‘*But ever since Gibbons vs. Ogden, 9 Wheat. 1, 6 L

Ed. 23, the states have not been deemed to have anth-

ority to impede substantially the free flow of com-

merce from state to state, or to regulate those phases

of the national commerce which, because of the need

- for national uniformity, demand that their regulation,

if any, be prescribed by a single authority."’ 65 S.Ct.

at 1519.

In holding the law unconstitutional, the Court said:

‘*Enforcement of the law of Arizona, while train

lengths remain unregulated or are regulated by vary-

ing standards in other states, must inevitably result

in an.impairment of unifprmity of efficient railroad

Operation because the railroads are subjected to reg-

ulation which is not uniform in its application. Com-

pliance with a state statute limiting train lengths

requires interstate trains of a length lawful in other

_states to be broken up and reconstituted as they enter

~, a

epch state according as it may impose varying lnnita-

— tions upon train lengths. The alternative is for the

carrier to conform to the lowest train limit restriction

of any of the states through which its trains pass,

whose laws thus control the carriers’ operations both

within and without the regulating state."’ 65 S.Ct.

at 1522.

The Court clearly recognized 4hat the Arizona law would

of necessity affect operations in other states when it said:

The practical effect of such regulation is to control

train operations beyond the boundaries of the state

exacting it beeause of the necessity of breaking up

and reassembling long trains at the nearest terminal

points before entering and before Jeaving the regu-

lating state.’* 65 S.Ct. at 1025.

In Southern Pacific Co. vs. Marie Jensen, 244 USS.

205, 37_S.Ct-324 (1917), the Supreme Court held that,

"New York Workmen's Compensation Laws could not be

applied to stevedores working in the maritime industry.

The Court drew a parallel between federal! power over

maritime-matters and federal power over interstate traris-

portation, referring to the latter in the following language :

‘A simflar rule in: respeet to interstate commeree,

deducted from the grant to Congress of power to reg-

ulate it is new firmly established. ‘Where the sub-

ject is national’ in its character, and admits and —

. requires uniformity of regulation, affecting alike all

the states, such as transportation, hetween the states,

cineluding the importation of goods from one state to

wnother, Congress can alone act upon it and provide

the needed regulationyg The absence of any law of

Congress on the sub jet is equivalent to its declaration

/ ?

—-74—

“~

that commerce in that; matter shall be free.’’ “37 8.

Ct. 529. ,

Many state attempts to regulate interstate Jransporta-

tion operations Tave been struck down by the United

States Suprenmie Court. A state statute requiring the use

of a contour. type of rear fender mudguard on interstate

trucks conflicted with the commerce clause and was un-

{ Bibb vs. Navajo Freight Lines, Inc., 359

U.S. 520, 79 S.Ct. 962 (1959). A state statute requiring -

sharitade trains to greatly reduce their speed at grade

crossings was found to-be%a burden on interstate com-

meree. «Seaboard Air Line Railway Co. vs. Blackwell, 2A4

U.S. 310, 37 S.Ct. 640 (1917). A state was without con-

stitutional power to order as railroad to remove bridges

over which its interstate trains passed even though the

bridge removal was a part of the State’s flood control

program. Kansus City Southern Rwi ¥. Co. vse Kaw Fe

Drainage District, 233 U.S#75, 34'S. Ct. 564 4) Bur

densome intrastate stops by inter

demanded. Herndon vs. Checago, “Rock Island & .Pacift

Rwi. Co., 218 U.S. 13530 S.Ct. 633 (1910; St. Louis-San

Francisco Rwy-Co, vs, Public Service Commission, 261

U.S. 369, 48 S.Ct. 380 (1928). A state may not require

that interstate trains leave their scheduled stops on time

Misguri, K..€@ T. Railway Co. vs. Texas, 245 US. 484,

~ 38 Fe 178 (1918). Aart -etacal ordinance regulating the

maximum number of passengers per catand the minimum

number ,of cars required for—a_ street railway company

operating between cities in two states was invalid. South

Coytngton and Cincinnatr Street Railway Co. DS, Coving-

ton, 235 US. 537-35 S.Ct. 158 (1915). In this case, the

* Court -said: | ;

et . " Pte . ,

“Tf Covington (a city in Kentucky.) can regulate these

oe (ey

matters, then certainly Cincimnati (in Ohio) ean, and

. interstate business. might be impeded. by conflicting

and varying regulations in this respect, with which it

might be impossible to comply. On one side of the

river one set of regulations might be enforeed, and

on the other side quite a different set, and both seek-

ing to control a practically continuous movement of

cars. As Was,said in Hall vs. DeCuir, 95 USS. 485,

eee 489, 24 L.Ed. 547, 548, ‘coinmerce cannot flourish in

the midst of such embayrassments.’*' 35 S.Ct. at 161.

Thus, an unbroken line of United States Supreme

Court cases over a period of nearly 150 years has estab-

lished that the national power over interstate commerce—

is supreme and plenary; that even when Congress has not

_—aeted the states will not be permitted to regulate'this com-

merce in areas in which a uniform rule is needed because

diversity of regulatory power creates an unconstitutional

burden, that the racial policies pertaining to the interstate

operations of carriers is an area in which a uniform rule

. is needed and only Congress can legislate, and that this,

among many other aspects of interstate transportation,

must remain free from regulation by the states.

————tongress trrsreemtated the aretivtty nv otved mnths

case and thereby pre-empted the field, leaving the state

without authority to act, The applicable rules concerning

pre-emption are set forth in Kelly vs. State of Washing-

ton, 302 U.S. 1, 58 S.Ct. 87 (AIBA):

The state court took the view that Congress had

oceupied the field-and that no room was left for state.

action -in relation to vessels plying on navigable

waters within the control of the federal government.

° ~

“This ee Nene a familiar principle, would

be unnegessary and Ynapposite if there were a direct

conflict with an express regulation,of Congress acting —

within its provinee, The argument presupposes the

absence of a contlict of that character. The argument

is also unnecessary and inapposite if the subject is

one demanding wniformity of regulation so that state

action is altogether inadmissible in’ the absence of

federal action, In that class of cases the Constitution

itself occupies the field even if there is no federal leg-

islation, The argument is appropriately addressed

to those cases where states may act in the absence of

federal action but where there has been federal action

——_______ governing the same subject." 58 S.Ct. at 91.

The Court stated that the doctrine of pre-emption is not

applicable where there is a direct confliet between state

law and federal law. In such a case the federal law is the

supreme law of the | land. In addition, the Court in the

Kelly ease pointed out that the pre-emption rule is in-

- applicable if the subject is one demanding aniformity. of

regulation. ee :

ee By-virtne of any one of several federal statutes and

- regulatory systems, an interstate air earrier is prohibited

from racial discrimination. “As to. those employers, fed-

eral legislation pre-empts the field. |

The Railway Laber Aet prohibits eracial diserimina-

tion. The Railway Labor Act (45 U.S.CLA. Sections 151,

et seq.) hereinafter referred to as the R.L.A.), whieh was

extended to cover, interstate air carriers by a 1936 amend.

ment (49 U.S.CVA., Seetions 181, et seq). isa compre-

hensive federal statute prescribing the duties of interstate

air carriers with re spect to their employees, There sis no

specific, detaited. section of the R.L.A. which specifically

treats the matter of racial discrimination. However, the

United States Supreme Court hts considered the provi.

sions of the R.L.A. and has clearly held that ractal dis-

crimination by employers subject thereio is forbidden.

The latest pronouncement \oy the Supreme Court on

this point came in Conley fs. Gibyou, 350 US. 41, 78 S.Ct.

99 (1957). Petitioners were Na&gro railway employees

who contended that the union had failed to represent them

equally and in good faith and had failed to protect them

. * fe re i? e %

from unjustified discharge and loss of seniority. The

“Once again Negro employees are here under the Rail-

way Labor Act asking that their collective bargaining

agent be compelled to represent them fairly. In a

series of cases beginning with Steele vs. Louisvilke &

Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, this Court

has emphatically and repeatedly ruled that an ex-

clusive bargaining agent under the Railway Labor

Act is obligated to represent all employees in the

biowainthe unit fairly and without discrimination be-

cause of race and has held that the courts have power

to protect employees against such invidious discrimi-

nation.”? 78 S.Ct. at 100.

_ The Court went on to say:

‘Here, the complaint alleged, in part, that petitioners

were discharged wrongfully by the Railroad, and that

the Union, acting aecording ‘to plan, refused to -pro-

tect their johs as it did those of white employees or

to help them with their grievances all because they

were Negroes. If these allegations aré proven there

‘

—738—

; ge

has been a manifest breach of the Union's statutory

duty to represent fairly and without hostile discrim-

ination all of the employees in the bargaining unit.

This Cotrt squarely held in Steele and subsequent

cases that discrimination in representation because ot

race is prohibited by the Railway Labor Aet.** 78°S.

Ct. at 102.

In Steele vs. Louisville & Nashville RR., 323 U.S. 192,

65 S.Ct. 226 (1944), referred to above as the leading case

in this field, the Court: said:

‘*We think that the Railway Labor Act impose upon

the statutory representative of the craft at least as

exacting a duty to protect equally the interests of the

members of the craft as the constitution imposes upon

a legislature to give equal protection to the interests

of those for whom it legislates ... We hold that

the langnage of the Act to which we have referred,

read in the light of the purposes of the Act, expresses

the aim of Congress to impose on the bargaining

representative of the craft or class of employees the

duty to exercise fairly the power conferred upon it

in behalf of all those for whom. it acts, without hostile

discrimination against them.’ :

Segalso’ Tunstall vs. Brotherhood of Locomotive Fire-

men and Enginemen, 323 U.S. 210, 65 S.Ct. 235 (1944):

Graham vs. Brotherhood of Locomotive Firemen and En-

ginemen, 338 U.S. 232, 70 S.Ct. 14 (1949).

The seope of these holdings by the Suprenie Court is

made clear by Brotherhood of Railroad Trainmen vs.

Howard, 343 US. 768, 72 S.Ct. 1022 (1952). Whereas in

the Steele case the Nego petitioners had admittedly been

9°

members of the craft (locomotive firemen) but had note

—T9— ..

S \

been members of the union (because membership was de-

nied to them on account of race), in Howard ‘the colored

employees had for many years been treated by the ecar-

riers and the Brotferhood as a separate class for repre

sentation purposes and have in fact been represented. by

another union of their own choosing.”” 72 S.Ct. at 1025.

However, it was alleged that the Brotherhood, under a

threat of strike action, forced the employer to enter into

a collective bargaining agreement which would have the

inevitable result of abolishing the Negroes’ jobs and re-

placing them with Brotherhood members. By this action

the union was in effect forcing the eniployer, aim interstate

rail carrier, to discriminate against Negro porters in the

tenure of their employment. This is exactly the same

field of law covered by the Colorado Act. The U.S. Su-

preme Court brushed aside the plea to restrict its earlier

holdings to instances of diserimination by the union

against members of the class it represented with the fol-

lowing language :

**Since the Brotherhood has discriminated against

‘train porters’ instead of minority members of. its

own ‘craft’, it is argued that the Brotherhood owed

no duty-at all to refrain from using its statutory bar-

gaining power so as to abolish the jobs of the colored

porters and drive them from the railroads. We think

this argument is unsound and that the opinion in the

Steele case points to a breach of statutory duty by

this Brotherhood. ae

‘*As previously noted, these train porters are threat

ened with the loss of their Jobs becatse they are not

witte and for no other reason. The job they did hold

ander its old name would be abolished by the agree

ment: their color alone would disqualify them for the

old job undér its new tiame. The end result of these

transactions is not in doubt; for precisely the same

reasons as in the Steele case ‘discriminations based

on race alone are obviously irrelevant and invidious..”’

72 S.Ct. at 1025.

And finally the Court held that the employer as weil as

the union was subject to the duty and obligation to treat

its employees without discrimination based on race by

permanently enjoining the railroad as well as the union

from using the contract or any other device to oust the

Negro porters from their jobs. This portion of the Court's

opinion reads: | 4

On remand, the District Court should “permanently

enjoin the Railroad and the Brotherhood from use of

the contract or any other similar discriminatory bar-

gaining device to oust the train porters from their

jobs." 72 S.Ct. at 1026. |

It is, of course, not material that. the public poli y or

objectives behind both the federal and the Colorado leg-

islation are similar. As stated by Mr. Justice Holmes,

' speaking for the Court in Charleston & Western Carolina

Ry. vs. Varnville Furniture Co., 237 U.S. 597, 35 S.Ct.

715 (1915):

‘‘When Congress has taken the particular subject

matter in hand, coincidence (of state regulation) is as

ineffeetive as opposition, and a state law is not to be

declared a help because it attempts to go farther than

Congress has seen fit to go.’ 35 S.Ct. at 717.

See also Wabash Railway Cv. vs, Minors, 118 US. 507.

7 S.Ct. 4 (1886), where-a state's attempt to prevent dis-

. eriminatory railway rates was struck down becatise it was

oa Tee

aosnubject of “general and national character’’, even

though federal regulation would not sanction discrimina-

tory railway rates either.

In summary, the Supreme Court decisions over a

number of vears require nondiscriminatory representation

by labor unions. In addition. the Supreme Court: incthe

Howard case clearly held that the RUL.A. requires the

same nondiserinminatory treatment by an interstate rail

carrier employer with respect to its employees. Hence,

the R.L.A., as interpreted by the United States Supreme

Court, oceupies the field of law relating to diserimination

‘in matters of employment by interstate rail and air ear

riers.

Such precemption necessarily precludes any attempt

by Colorado, as in the instant case, to extend. its regula

tory activities in the field to the interstate operation of

an air carrier.

The Civil Acronauties Act prohibits racial diserimina

tion. Not only has the field of racial discrimination by

interstate air carriers heen pre-empted by the R.L.A., but

it ix also covered by the Civil Aeronautics Act, hereinafter

referred to as the CALA. 49 US.CLA. Sections 401, et seq.

It shoyld be noted that in 1958. the CLALA. was repealed —

and repiaced with @ new statute known as the Federai

Aviation Program.Act, heremafter referred to as the F.

A.P.A., 49 ULS.CLA. (Supp.) Sections 1301, et seq. How-

ever, the effective date of the FLALP.A.. insofar as it

supersedes the earlier provisions of the CLA.A. applicable

to this case, was not earlier than December 1, 1958. (See

annotation following 49 ULS.CLA. (Supp.) Seetion 1301)

Respondent Green's complaint against Continental whieh

was filed with the Cominission on or about Angust 15,

1957, referred to acts which allegedly occurred ino June

and July of 1957. As a consequence, the C.A.A. and not

the FLA.P.A. was in effect during all times material to

this action.

The Civil Aeronautics Act regulates practically every

phase of an interstate air carrier's operations. The pub-

lic policy of this act is set forth in the broadest terms. 44

U.S.C.AS Section 402. Extensive coutrol is exercised over

Hight crew personnel. 49 U.S.CLA. Sections 551-560. Such

employees are licensed or certified by the Civil Aeronautics

Board, and that Board may under certain circumstances

revoke or suspend certificates or licepses. The diacipli-

nary power of the Board over flight crew personnel is

very broad. For instance, the Civil Aeronautics Board has

the power to suspend or revoke pilots’ certificates for bad

judgment even though the pilot violated no statute, rule

or regulation. Hard vs. CAB, 245 F.2d 761 (7th Cir.

1957); Wilson vs..CAB, 244 F.2d 772 (D.C. App. 1957).

The statute delegates extensive power to the Board, in-

cluding the power to conduct investigations and issue

orders, rules and regulations. 49 U.S.C.A. Section 425

Pursuant to that power, the Board regularly issues orders

and has promulgated a large volume 6f rules and regula-

tions touching practically all phases of interstate air car-

riage. 14 Code Fed. Regs.

The ‘‘intensive and exclusive’’ control of the Federal-

Government over air commerce was discussed bv the

og States Supreme Court in’ Northwest Airlines. Ine.

. Minnesota. 322 U.S. 292, 64 S.C t. 950 (1944). The fol

PRA language from the cone urring opinion of Mr. Just

ice Jackson is particularly illuminating:

“Congress has recognized the national responsibility

for regulating air commerce. Federal control is in-

tensive and exclusive. Planes do not wander about

in the sky like vagrant clouds. They move only by

federal permission, subject to federal inspection in

the hands of federally certificated personnel and un

der an intricate: system of federal commands.’ 64

S.Ct. at 956. Bech

In Allegheny Acrlines, Ine. vs. Village of Cedarhurst,

132 F.Supp. 871 (E.D.N-¥. 1955), the Court had before it

the specific contention that the federal statutes had pre.

empted one aspect of air commerce. The Village of Cedar.

hurst, located near Idlewild Airport in New York, enacted

an ordinance prohibiting air flights above the city at an

altitude of less than 1,000 feet. In holding the Cedarhurst

ordinance unconstitutional, the Court said:

The plaintiffs’ contention that the legislative action

by the Congress together with the regulations, adopted

pursuant thereto, have regulated air traffic in the vavi-

gable airspace in the interest of safety to such an ex-

tent as to constitute pre-emption im that field is up-

held. The States, including the Village of Cedarhurst,

are thus precluded from enacting valid contrary or-

conflicting legislation."* 132 F.Supp. at RSI.

In Fitzgerald vs. Paw Amerwan World Airways, 229

Pid 499 (2d Cir. 1996). the plaintiffs alleged that they.

were denied first-class passage on one of defendant's air-

planes because of them race and that such conduct violated

the Civil Aeronautics Act, 49 ELS.CLAL Seetion 484 7b),

which provided in part as follows:

“Nevair carrier... shall... subject any particular

person, port. locality. or description of traffie an cair

transportation to amy uiajust diserunination or any

al *.

mei

—84—

undue or unreasonable prejudice or disadv: antage in

any respect whatsoever.”’

The Court held that this section prohibited racial diserim-

ination by interstate air carriers and that it created ‘an

actionable civil right for the vindication of which the per-

son harmed could bring“a federal court action. The Court

said:

‘*Aithough we regard it as not controlling, we note

also the following: Congress sought uniformity in

— the practices of those subject to-this Act. It is by

no means clear that, in all states and territories, the

common-law rules would render unlawful racial dif-

ferentiations in accord with the ‘separate but equal

doctrine,” whereas, in the light of recent Supreme

‘Court decisions, we must construe Section 484(b) so

that that doctrine will not apply.’’ 299 F.2d at 502.

The language underlined in the last quoted portion of the

Fitzgerald case shows that Congress ccnsidered uniform-

ity in practices of interstate.air carriers to be-necessary.

This is in effect both a legislative and judicial mterpreta-

tion to the effect that uniform rather than diverse regula-

“tion is necessary. - a

The Fitzgérald case is also a clear holding’ that racral

discrimination in interstates air commerce is ‘prohibited by

federal law. Although the case itself involved. discrimine-

tion against _it passenger, there can be ne, doubt that the

.same rule would apply to discrimination in matters of

employment. The statute condemns “*‘unjust diserimina-

tion’’ against ‘any... person’’ @y an air carrier. ‘*Per-

son** certainly includes employees. Moreover, a subse-

quent case approved the broad interpretation which was

given to section 484(b) bY the Court in the Fitzgerald

—

— a

case. Judge Lumbard,* concurring in Spirit vs. Bechtel,

232 F.2d 241 (2d Cir. 1956), made the following comments:

—T

“The authorities cited hy our dissenting colleague

are-not in point, it seems to me, because in those

Cases there Was good reason to believe, and this court

found, that Congress was enacting legislation for the

benefit of a class. The court therefore concluded that

. the right of a member of the protected class to bring

a civil suit should flow from the legislation. A clear —

case of this is our recent decisions in Fitzgerald vs."

Pan American World Airways, Ine., 229 F.2d 499.

We were there concerned with 49 U.S.CLA. See. 484(b)

which protects against unjust discrimination by air

carriers. The plaintiffs were persons allegedly harmed

by unjust discrimination and were elearly within a

class which Congress sought | to protect. °° 232 F.2d

: at 250. oy i | ;

In interpreting the Interstate Comabbce Act, which

contains language practically identical to the portion of

» the C.A.A. discussed in the Fitzgerald case, the U.S. Su-

preme Court, in Mitchell vs. United States, 313 U.S. 80,

61 S.Ct, 873 ne ), stated among other things, as follows:

‘We have repeatedly said that it is apparent from

the legislative history of the Act that not only was

the evil of discrimination the principal thing, aimed at,

but that ther® is no basis for the contention that

Congress intended toeexempt any diserimingtory ac

tion or practice of interstate carriers affecting inter

state commerce which it) had authority to “reach.

(Citations omitted.) Paragraph 1 of Section 3) of

the Act says explicithy that it) shall) be Thiawtnl!

for any common carrier subject to The Net sto sube

J -$(- ~ °

' <

ject any particular person ... to any undue or un-

reasonable prejudice or disadvantage in any respect

whatsoever.’ 49 U.S.C. Section 3, 49 U.S.C.A. Section

3. From the inception of its administration the In-

terstate Commerce Commission has recognized the

applicability of this provision to discrimination against.

colored passengers ‘because of their race and the duty

of carriers to provide equality of treatment with

respect to transportation facilities; that is, that col-

ored persons who buy first-class tickets must be furn-

ished with accommodations equal in comforts and con-

veniences to those afforded to first-class white passen-

gers. 61 S.Ct. at 877.

There are other reasons why it can only be concluded

that the federal aeronautics statutes prohibit racial dis-

crimination by interstate air carriers and therefore leave

the states without authority to act in this field. The see-

tion setting forth the declaration of policy in The federal

statute reads in material part as follows:

‘*In the exercise and performance of its powers and

duties under this chapter, the Board shall consider

the following, among other things, as being in the

public interest, and in accordafice with the public con-

venience and necessity — _

eee rs

‘*(e) The promotion of adequate, economical, and ef-

ficient service by air carriers at fdéasonable charges,

without unjust discriminations, undue preferences or

advantages, or unfair or destructive competitive prac

tices :'* 49 U.S.C.A. Section 402.

If anything, this séction, which sets forth the objectives

which Congress sought to achieve by the Act, is even more

specific than the section held in the Fitzgerald case to

prohibit racial discrimination.

‘In addition, as noted earlich herein, the ortginal Civil

Aeronautics Act Was repealed and re-enacted, with ametid-

nents, aS the Federal Aviation Progtam Act. 49 U.S.CLA

(Supp.) Sections 1301, et seq. The section held the

* Fitzgerald case to prohibit racial discrimination by inter-

state air carriers (49 U.S.CLA. Section 484(b)) Was re-

enacted without one word being changed. 49 U.S.CLA.

(Supp.) Section 1374(b). It is a well-known rule: that

when a legislative body enacts without change a statute

which has’ been judicially construed, the legislature She

deemed to’ have “approved and adopted the construction

placed upon that act by the courts.

The Fitzgerald case’is in accord with other decisions .

construing similar language in the federal statutes regu-

Jating other modes of interstate transportation. In Na-

» ttonal Association for Advatcement of Colored Pe ople vs.

St. Louis-San ‘Francisco Rw y Co., ICC No, 31423, 1 Race

Rel. Law ‘Rep. 263 (1956), the Interstate Commerce Com- ”

mission ruled that the statute under which it functions

prohibited passenger segregation on interstate rail travel.

The Commission said:

—

‘*The complainants invoke our authority to prevent

violations of section 3(1),; which makes it unlawful

for a rail carrier ‘to subject any, particular person

. to any undue oy unreasonable prejudice or disad-

vantage inany respect whatsvever.! The disadvant-

age to a traveler who is, assigned accommodations or

facilitivs so designate “les to imply his inherent inferi

ority ‘sole ly because of his race must be regarded un

der present conditions as unre asonable.’

See also Ke§s vs. Carolina Coach Co., ICC N AIC -C-1564,

1 Race Rel, Law Rep. 272 (1956), where the Commission,

ruled that racial discrimination in bus transportation was

prohibited by the applicable federal statute. The. statu-

‘tory language involved in this case was exactly the same

as that found in the C.A.A. and given the same construc

“tion in the Fitzgerald case. P

The comprehensive scope of federal legislation with

respeet to interstate air carriers is obvious, When the

pervasiveness, of federal regulation of sthe industry gen-

erally is considered in connection with ‘the specific federal

laws and regulations (and the cases interpreting those

laws and regulations ) prohibiting racial discrimination by

‘interstate air carriers, there can be no doubt but that fed-

eral law has covered the subject matter involved herein

‘and. leaves no room for the application of Colorado Law.

Exe®ive onder prohibit discrimination by Govern-

ment, contractors, This is yet another federal regulatory

“systein which ‘covers racial discrimination by Petitioner

and others similatly situated. By Exeeutive Order 10479,

Aygust 7 1953, the President established the Government

Contracts Committee. The purpose’ of the committee ‘is

iy prevent persons contracting with the federal govern-

ment from discriminating on account of *‘race, creed, edlor

or national origin.’ The committee recommended, and

the President 6¥dered in Executive Order 10557, Septem-

her 3, 1954, that thegfollowing clause be .inieluded in. all

contracts executed WW the contracting agencies. of the fed-

"! a

eral Serre ¢ | :

“*Tn connection “with The performance of work under_*

this contract, the contractor agrees not to discriminate

agaist any employee or applicant for employment

oe; a

oe s

80.

because “of race, religion, color ‘or national oyigin,

The aforesaid provision shall include, but not be lim-

ited to, the following: Employment, upgrading, de-

‘motion, or transfer; recruitment or recruitment adver-

tisihy ; ‘.y-off or termination; rates of pay or other

forms of compensation: and selection for trainimg,

eluding apprenticeship. The contractor afrees to

post hereafter in conspicuous places, available for em-

ployees and Applicants for employme nt, notices to be

provided by, the contracting officer setting forth the

aecpiez: of the non-discrimination. clause.

‘As a certificates commercial « ‘arrier by aif, Petitioner is

obligated to.and in fact does transport United States mail”

under contract with the United States Govergnent. 49 U,

S.C.X, Section 489(a), 49 U.S.CLA. (Supp.) Section 1375.

Therefore, Continental remains constantl¢ in the status of

one contracting with the federal government and subject

to the non- discrimination » policy required of such’contrac-

tors. Specifically, ( ‘ontinental is prohibited from diserim-

inating against ‘tany employed or applicant for employ-

menf”’ because of race ‘‘in connection with the perform-

ance of any Work’’ under government contracts. Obviously,

members Of flight crews are engaged'in the performance

of work in connection with transporting the mail. Again,

federal regulation occupies the field.

If federal law occupies » field, it does so exclusively

and it is immaterial whether or not the federal power is

exercised. Pe iret the outstanding example of this prin

ciple is Guss vs. Utah Labor Relutions Board, 353 US. 4,

7 S:C't._59s8 987¥" Th # art held in effect that where

the matter of preventie of unfair labor practices atfeet

ing commerce had been ocenpied by the National Labor

Relations Act, the ocenpation was eXelusive and barred

e +3 ss

)

—9)—

state action pursuant to state law, notwitastanding the

fact that the NLRB had refused to agt in the’ specific mat-

ter because of jurisdictional yardsticks established by it.

The case is famous because the Court was fully aware of

the so-called no man’s ‘land which existed where the fed-

eral government had jurisdiction but refused to act and

the state government could not act. Nevertheless, Fed-

eral law ‘‘ pre-empted’ the field and the state was power-

less to act. é

To the same effeet is San Diego. Building Trades

Council vs. Garmon, 359 U.S. 236, 79 S.Ct. 773 (1959). The

Court there held that state labor law could not enter fields

which might arguably (though not definitely) be covered

by the federal Jabor act, “Several statements made by the

: eé the breadth of the doctrine of pre-emption

and the restrictions placed upon the extension of state law

mie

into areas covered by federal law:

‘‘In the light of these principles, the case before us

is clear. Since the National Labor Relations Board

has not adjudicated the status of the conduct for

~ which the State of California seeks to give a remedy

in damages, and since such activity is arguably within

the compass of Section 7 or Section 8 of the Act, the

State's jurisdiction is displaced.

“

‘*Even the States’ salutory effort to redaress private

wrongs or grant compensation for-past harms cannot

be exerted to regulate activities that are potentially |

subject to the exelusive federal regulatory scheme."’

79 S.Ct. at 780.

These recent United States Supreme Court decisions

delineate the scope of the pre-emption doctrine. The Rail-

iin.

way Labor Act, the Civil Aeronautics Act and the Exeen-

tive-Orders pertaining to Government Contractors all deal

directly and forcefully with racial discrimination by inter-

state air carriers. Henee, Colorado's racial policies may

not be extended to this area.

In conclusion, the Court finds that the Colorado Act

may not constitutionally be extended to cover the flight

crew personnel of an interstate air carrier.

Accordingly, the findings of the Colorado Anti-Dis-

crimination Commission are set aside, amthe Complaint

- of Mahlong D. Green is dismissed. a

The Court orders that a Motion for a New Trial be

dispensed with, and if filed, would be overruled.

Dated this 7th day of January, -A.D. 1961.

BY THE COURT:

ys’ Wilham’ A. Black

District Judge

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