# Petition for Writ of Certiorari — Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0175%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 372 U.S. 714 ## Text - 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 ee 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 a 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. 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 \. & rd a. Green the first opportunity to enroll in its next training course with a eas status of June 24, 1957. =e a 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.’’ a 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 a 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. © NX 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: ee Honorable William A. Black, Judge ba 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. a ‘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. Ge 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 8 a 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- ot 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 fF t23 : 26 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- 99 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 , , ; CONCLUSIONS OF (Continental Airlines, Ine. LAW and ORDERS Respondent. 4 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 a 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. = ae 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 5 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. 4 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- nn / _ a ie 4% 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: a 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 . v 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- s \ ‘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 eo 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. Re —§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- oe , 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 o & ? ; 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: c There is, however, an even more ‘compelling reason @> Ss 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 facts before it, saying, in part: © ‘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 5 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 © trains cannot be oe (ey 4 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. ° ~ \ a oe oe “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. a 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 . o 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. | Co 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 2 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: c ‘*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 * ee s 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: v — ‘*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. é 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0175%3A02. Public record. Not legal advice.