# Petition for Writ of Certiorari — Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0383%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 707 ## Text rad ° 4 . . . 4) . . - 2, - Bad . “ ° ; . . - — ~ \ , - , v4 , S) e,, . ‘ ae Se os In The SUPREME COURT OF THE March Term, 1971 EVANSVILLE-VANDERBURGH AIRPORT. AUTHORITY DISTRICT, KENNETH C, KENT, ELMO HOLDER, ROBERT M. .LEICH, IAN F. - LOCKHART, CLIFFORD K. ARDEN, JAMES A. GEYER and PAUL E, HATFIELD, on behalf of himself and all other persons similarly situated, 3 Fa Petitioners, = U8. ben DELTA AIRLINES, INC., EASTERN AIRLINES, _ ALLEGHENY AIRLINES, INC., and WILLIAM, | F. WOOD, on behalf of himself/and all other ) persons similarly situated, | , ei | Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE _ SUPREME COURT OF THE STATE OF INDIANA: . . Howarp P.. TROCKMAN JAMES F. FLYNN _ — . 20 N. W. Sixth Street . Evansvillé, Indiana 47708 ' Attorneys for Petitioners asm Se =~ py ert Lak are | oe ly PAR Fen ry Ga OE Te ere \ >. — Court area mn pesvoadansaciasiiisinsnniciinanaetins INDEX : PAGE Opinions Below sdcavavoiverinectaanpsesethitionssnsih§auesteeaegeniseneed 2 Fearne stat nae et cones TS suet + The Questions Hieted a eR Constitutional Provisions, Statutes and 3% Ordinarices Involved. .0.........scsssssessesssssessnesseeneenesneeees 3 ‘ Statement ................... Aguok ss sipshenkerernataatesiostbanniattente a Reasons her Granting the wet bastinst TE! Sass 3 Conclusion ini thattiaialeoRias UTR eRe NE Appendix A— Opinion of the Court Below a vee 14 Appendix B— sy Pes: United States Constitutional Provisions ....:......... 23 Bieta MI ooo ciacocsesesorienorneisaceesqerecacussaeal: WE - | Ordinance NO. 83... esccsssessessssnesssneesesees Se ape ae | Appendix CcC— - Opinion of New Hampshire | 99. ii- CASES CITED sere | ; . PACE _Aero Mayflower Transit Co. v. R. R. —. Commissioners, 332 U.S: 495, 503, 68 S.Ct.. : RE, Fe Bate We CD. iv ticnsscnncesicsiie ne ckccteeecees 11, 12 © Financial Air Corporation \ Vv: Wallace, 216 Ind. 5114, BB NEQd. (1989): oo.cccscdecccecsseecesssccechesensseseeee 8 Gensel Motors:Corp. v. District of Columbia, ~ 380 U.S: 553, 85 S.Ct. 1156, 14 L.Ed. 2d 68, 85 . i esscisnstni Maca 6. Hendrick v. Maryland, 235 U.S: 610, 35 S. Ct. 140, . 59 L.Ed. 885 (1914) cnnerrreierne Sanne | ae | ase: Glover, 119 U.S. 548, S.Ct. 313, . a : | Waker ene erent Ome ne nneennCEEe .. 1 Kersey v. City of Terre Haute, 161 Ind. 471, AT3, 68 N.E. 1027 (1908) ..cssccsssosssosscessssssssseessten 120. Northeast Airlines, Inc., et al v. New Hampshire ; Aeronautics Commission, et-al, (Not yet officially reported) See Appendix ©... 6 ” orthwest Airlines, Inc. v.-Joint City County : Airport Board, 154 Mont. a 463 P.2d 470. PER EREERREARS ore Rta co nner ener Ska er oan ace ee 6 Richmond Baking Company v. Department of | Treasury, 215 Ind. 110, 18 N-E.2d 778 (1938) ....... 12 - Southern Ry. Co. v. Clift, 260 U.S. 316, . 48 S.Ct. 126, 67 L.Ed. 288 (1928) ..eicclacencney 2 ‘Southern Ry. Co. v. Hunt, 42 Ind. App. 1, SB NE. T21 (1908) rereinrnnennn nn ‘STATUTES CITED. Burns Indiana Statutes, Annotated, Behe MO BEB 5 ienensenntinnsnnnnnssseesnnneon ey a | 40 UBC 1110(4)- nanan nenntonninnce Ee oe 28 USCA (1257(8) cson Zanes aN ae / _— - “ The Ppa RLRED OH MOL On Sige a ne ee eS ee oe eee i ore » In ‘The SUPREME COURT OF THE UNITED § STATES . Mareh Term, 1971 | BDA: cxcaisisnnioonsipi EVAN SVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT, KENNETH C. KENT, | ELMO HOLDER, ROBERT M.-LEICH, IAN F. . | LOCKHART, CLIFFORD K. ARBE cee GEYER and PAUL E. HATFI LD, on-behalf of . ~ himself-and all other persons similarly situated, . Petitioners, V8. DELTA AIRLINES, INC., EASTERN AIRLINES, © ALLEGHENY AIRLINES, INC., and WILLIAM F. WOOD, on behalf of himself and all other persons, similarly situated, : Reopondents : PETITION FOR A WRIT OF CERTIORARI TO THE m —— COURT weed THE — OF. INDIANA To the Honorable, the ‘Chief Justice of the United “States and the Associate Justices of the Supreme Court of the United States: aa S naadlerat . Petitioners pray that a Writ of Geitionari issue to review the judgment of the Supreme Court of the State of Indiana entered on December 23, 1970. . 2 OPINIONS BELOW _ The opinion of the Supreme Court of the State of Indiana, Cause No. 869'S 179, is printed in icsmer | A hereto and is err in 265 N. E. 2d 27. _ t JURISDICTION ; The Judgment of the Supreme Court of the State of Indiana, printed in Appendix A hereto, was entered on December :23, 1970. Said J udgment, was final and no petition or order respecting a rehearing was requested fa or required (Southern Ry. Co. v. Clift, 260 U.S. 316, 43. S.Ct:.126, 67 L.Ed. 283 (1923), and no request or or- ‘der for an extension of time within which to petition for Certiorari was filed, granted, or required... The jurisdiction of this Court is invoked under 28. ~- USCA 1257(8). THE QUESTIONS PRESENTED L ‘Wham an Airport, ‘at. its own expense, “furnishes special facilities for the use of those engaged i in com- ". merce, interstate as well as intrastate, is it authorized . to collect a reasonable use and service charge from ~ commerce for the privilege of using and enjoying such facilities and for the purpose of defraying the costs ‘and maintenance thereof? 2. Is a use and service charge of One Dollar ($1. 00) - - imposed upon each enplaning commercial airline pas- senger by an Airport which, at great. expense to its taxpayers, provides its facilities for the primary use and benefit of commercial airline passengers, an un- ca a reasonable burden on interstate commerce in violation — of Article I, Section 8, Clause 3 of the United States, pa cacarsapals 3 CONSTITUTIONAL PROVISIONS, STATUTES ~~ _ AND ORDINANCES INVOLVED == _° The constitutional provision involved is the Com- - - merce Clause, the same being Article I, Section 8, Clause 3 of the United States Constitution. ; . - The Indiana legislative authorization for ehactment : of this use and service charge is found in the Acts of — 1959, Chapter 15, page 32, the same being Burns’ Indi- — ana Statutes, Annotated, Section 14-1215. | The Ordinance involved in this. proceeding was passed by the Petitioner, Evansville-Vanderburgh Air- port Authority District, as Ordinance No. 33, on Feb- ruary 26,1968. * a ee The provisions of said Constitution, Statute and Or- dinance are printed in Appendix B-hereto. wees 7 “>, ‘ , : 27 3 - ! nal ‘ wi . x “ “a / iz . mentalities making “substantial” use of public ailport : “facilities is saqctioned by Feileral Statute, citing 3° USCA Section D0 4). Accordingly, the Court con- Dae _ eluded that the enplanement fee was what it purported ~~ -to'be, a fee for the use of facilities furnished by the . public and that its incidence depends upon an event. . which is wholly intrastate, namely the enplanenient of — "passengers within the State of New ‘Hampshire at a "facility publicly provided or supported; that the bur- ‘= den upon the carriers was minimal, and did not exceed reasonable compensation for the ‘use provided. The opinion of the Supreme Court -of the State of New Hampshire, Merrimack, No. 6086, is printed in Appen- - dix C and is not yet reported in the official reports. ~ While the Respondents will, undoubtedly, oppose the . granting of this Petition for Certiorari, it is virtually certain that the unsuccessful airlines in ‘the New | ‘Hampshire proceeding, ultimately, will petition this Court for a review of its adverse decision. . Thus, the question of the validity the Petitioner ce Airport Authority's Ordinance¥ here "involved, under the Commerce Clause of the Federal Constitution is of far-reaching importance to all state and municipal. - taxing bodies where facilities are provided foxy inter- — “state, as well as intrastate, commerce at a great finan- jal burden to its taxpayers. | iter "The Acts of 1959, Chapter 1, ‘General Assembly, the same “statutes, Annotated, Section 14-121 pag@ 32, of the Indiana bei Burns’ Indiana , specifically au- thorizes the Petitioner Airport Authority, at subpard: graph9: atk oh eae cae “to adopt a schedule of reasona Je-tharges and to collect the same from all users of facilities and’ services within the jurisdiction of the District.” oh nd and at ‘niente 16'thereof to: * an ae ', . make all reasonable.tules and regulations . the Management and control. of its airports nt ran ee facilities and other property der its control.” . to fix, charge and-collect’ sebtiie tolls, fees and | yee to be paid for the use of the whole-or any © part or parts of any’such airports’or landing fields, . and other’ air navigation facilities . . Gand to.fix, ~~ charge and collect: fees for. public admissions: and privileges.” ) ae oad The State of Indiana -has long since held that the Legislature may' confer and delegate the power to. adopt rules, by-laws arid ordinances and has the right — to delegate to the Executive or Administrative its - power te:fix rates. Financial Air Corporation v. Wal- — “ lace, 216 Ind. 114, 23 'N. E.2d 472 (1939) ; Sou. bi Co. _ v. Hunt, 42 Ind. App. 1, 83'N.E. 721 (1908). all The record in this proceeding amply displays both ‘the legislative: Pgh: anewer for the-enactment of a | _ user charge aiid. the inancia}fneed of the Petitioner ° Airport- AutKority to raise the. revenues created. through the enactment of such charge for the: purpose of defraying the cost of present and future require- é ments for capital inprovemenits ‘at the Petitioners’ i. The thespoaiuis ‘below stipulated and prices am as ‘tn the truth of certain facts submitted by the Petitioners _ below, each of which Stipulated. Facts of thé Petition- * ers are material and relevant to this Petition and ‘sup- port the constitutionality of the use and service charge established: by Petitioners’ Ordinance No. 33. (R. 469- . 490) These arrieeee Facts show, among other snines 3 Om: & = (a) 9 | The use and service Rar ‘ge, OO No. 33, s .was adopted by the Petitioners, Evansville;Van- ue der‘burgh Airport Authcr ity District? in accord- * ‘ance with the legal pr ogedur es vequired by In- (b) diana: Law. (R. 489) In the year 1967, appr oximiately 146, 955 enplan- ‘ing _passengers boarded aircraft at Dress Me- morial Airport. That the number of: enplaning | and deplaning passengers at Dress Memorial — Airport are approximately the same « (R. 478), and that Petitioners” Ordinance No. 33 imposes — a use and Service charge of One Dollar. ($1. 00) on all enplaning passengers of commercial air- lines whether said enplaning passengers travel - . in intrastate or interstate. commerce. (R.. 480). | (Cc). _ craft at Dress Memorial Airport are either ini- That the vast majority of persons enplaning air-.. tiating the first: leg of a journey which wilh be: completed by a return flight to Evansville or, coriversely, are completing the second leg of a journey which had its. origin at a locality other md — than. Evansville. (R. 487) . (d). Appr oximately forty percent (40% ) of the users of Dress Memorial Airport are non-residents of | Vanderburgh County, Indiana, wherein Dress © Memorial Airport is located, and that the use and service charge established by Ordinance No. 33 is designed to be collected from all commer- “ cial airline enplaning. passengers using’Dress Memorial Airport without regard to their resi- dence or ownership. of property: within Vander- we (e) .. cilities are primarily designed for use by per- burgh County, Indiana. (R. 486): That the Terminal Building and most of its fa- 10 sons travelling ‘on commercial -airlines. and. would not be. essential for the operation ‘of.a’ ‘non-commercial airport. (R. 480) (f ) That the real’ estate, runway . Jengths® “approach ar eas, taxiways, ramp areas and approach light- : “ing system of Dress Memorial Airport would not be so extensive except for the accommoda- tion of commercial airline. carriers and ‘their _ passengers. (R. 480, 481) ; (g). That the capital impr ‘overhent: program recom- . _g@ mended by. the consultants of the Petitioners is ~ primar ily designed for the safety, comfort and convenience of commercial airlines, its. equip- ~ ment, personnel and commercial airline passen- ‘ gers (R. 486) and based-upon the present. bond- - ed indebtedness of the Petitioner Airport Au-. thority and the need for additional capital im- provements, as shown by the exhibits attached. — to the stipulations, there exists a need for addi- - > tional revenue which the use and service charge, » Ordinance No... 33, was — to raise. > (R. 486) - (h) That the adoption, initiation and fulfillment of. — capital i improvement program recommended by th he consultants of the Petitioner Airport Au- thority and the retirement of the indebtedness created thereby will require more revenues than ~ would be produced.by the use and service charge, Ordinance No., 33,. 3, assuming that said improvements would be ‘amortized over a fifteen = (15) year period and that the forecast of prob- - able passenger movement at: the. Petitioners’ Airport is reasonably accurate. (R. 448) '. (i) That, presently, the funds which are needed, \ \ on over and above operating revenues, te retire. . existing and future capital improvement costs - at Dress Memorial Airport are derived from tax levies on all assessed property located only with- — in Vanderburgh County, Indiana, (R. 486) and_ that the fulfillment of the capital improvements ~~ program recommended by the consultants of the | | Petitioners will require more revenue than can . be produced by the maximum tax levy now per- ' _ mitted by.law to be levied by the Petitioners and: will necessarily cial air passengers at Dress Memorial | Airport. The | "ondinane in pertinent part, reads: ot ion 1. Commencing on July 1,’ 1968, there is hereby fixed, created and established -‘@ use and service chargé of One Dollar ($1.00) for each | _ passenger enplaning any commercial aircraft | Operated from the Dress Memorial Alrport. oe 8 * *. | - “Section 4. The ‘term ‘each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport’ shall not include, nor shall the use and service charge hereby created, apply’ to any active members of the United States Armed Forces enplaning aircraft at the Dress - Memorial Airport, or any person purchasing an airline ticket having, as an initial point of depar- , ture, a locality other than Dress Memorial Air- “e, port, and whose flight either terminates or re- - quires an intermediate or temporary stop at. 7 — Memorial Airport. ; > nn . es * ~~) es La = Se, - “Section 5. All revenue collected fronr said: use and service charges shall be held by the Evans-. | - ville-Vanderburgh Airport Authority District in - '* a separate fund for the purpose of defraying the . . present and future costs incurred by said’ Airport ee _ Authority in the construction, - improvement, equipment,’ and maintenance of said: Airport and .. its facilities for the continued use and fubare en-_ + ‘joyment by all users thereof.” ss “The appellee airlines .are commer cial air carriers transporting passengers, freight, express and mail to. ‘ and from Dress Memorial Airport in interstate com- fueree under authorization of the Civil Aeronautics » Board. Each of the appellee airlines: leases and oper- ates facilities at Dregs Memorial Airport. ‘for the pur- poses of provisling” commercial ait passenger and freight service. The ‘appellees-sought to enjoin the en- | forcement of Ordinance No. 33 on the ‘grounds it was . unconstitutional and illegal in several respects: In granting appellees a permanent- injunction the trial - court made eleven conclusions of law, but in the view . we take of this case it-is necessary to discuss only the following one: “The :$1.00 chitge imposed by sedhehene No. 33_ upon passengers enplaning tpon commercial air- - eraft at Dress Memorial Airport, not being. re- '- lated to or apportioned according to the use of facilities at Dress Memorial Airport, constitutes _ an unreasonable burden upon negoenrusee com- ta merce in the United States.” ” Appellants’ arguments on: appeal is that that con- clusion is erroneous and the $1.00 tax. is a valid service tax for the use of facilities. provided by appellants at - Dress Memorial Airport and thus not an a - ‘burden on interstate commerce. - pcg aye ON ee a Ch ee ad ‘iia e saan oust that the ineidenee of the tax im- ae) _by Ordinance No. 33 falls on interstate com- ° - re merce,’ The tax is on the act of enplanement on one of - —_. the appellee airlines and‘in 1966, 88. ay of the persons ° aor departing Dress Memorial Airport upon the appellee ; ~ airlines enplaned for ultimate destina‘ions beyond the... State of Indiana. - The basic principle governing “ae rer of a ite : + to levy a-tax affecting inteistate c merce is -that ‘ suich a tax “can only be justified as designed to make’ such commerce bear. a fair share of the cost of the local government whosé protection it enjoys.” National Bel- |. | las Hess, Inc. v. Dept: ‘of Revenue. (1967 ), 386 US.) 158; 87 S.Ct. 1889, 18 L.Ed.2d 505; Freeman vu: Hewit_ | + (1946), 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265. The mere. fact that the taxing. authority denominates a tax - - as-a “use” or “service does not settle the question, however. The classification used by the taxing author- aes ity for the assessment of such fees must embody a uni- form, fair, practical standard bearing a reasonable re- lationship tothe use of State facilities. Northwest Air-. . _. Lines, Inc. v. Joint City-County Atrport Bd: (1970, Mont: S.Ct.), 463 P.2d 470; Hendrick v: ‘Maryland ; (1915), 285 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385. _- ‘The sole issue then on this: appeal i is whether the act “aoe a of enplaning a commercial aircraft is reasonably re- lated to the use of the facilities at Dréss Memorial Air- 7 port for which the’$1. 00 tax is levied. 2 The facts are undisputed and show the following :. In 1967, there were 146,955 enplaning passengers and 145,142 deplaning passengers on air‘carrier flights _ at Dress Memorial Airport. In. 1967, there were 14,834" take-oits — landings by commercial air carriers and a en e da, Se | there were 84,598 take-offs and Jandings by other civil. and. military aircraft. . The airport facilities at Dress Memorial Airport i in- _ clude the following facilities and services: (1) Main Terminal Building. o° x ory +g air passenger service counters .=ss€i. ti na air freight service overs and facilities | * waiting room. . * rest ‘rooms, - ° dining room: — -. lunch counter . ~ “newsstand. =~ | os barber shop et ee \ gf tay areas" : _ stands car: rental counters. .7 '. . or changi ng planes at Dress Memorial Airport ‘after arrival by commercial aircraft ; (c) Deplaning « commercial passengers ; : ‘(d) Persons arriving or departing on noncommer- cial or nonscheduled aircraft ; (e) Persons sending or receiving air + freight ship- ments ; | (f) Persons m eting or seeing . off coummurchal and noncomme ‘tial passengers ; are (g) Persons visiting the airport for the purpose of observing flight operations or for the purpose “of using dining, bar, car ‘rental, or other facili- | . ties. * ‘20 % - These classes of uses of airport facilities aiteaaly 4 con- stitute anmajority of those persons ‘who use one or _‘more of t airport facilities. _ It is obvious that certain enplaning commercial pas- ea sengers are subject to the tax regardless of the extent: to which they-use the airport facilities. On the other . hand persons who may make very extensive use of the - facilities die not subject-to.the tax. unless they actually ~ board one ‘of appellees’ commercial flights. For exam- ple} a ‘commercial passenger carrying only a briefcase - may be driven to the airport by his wife, immediately buy a ticket i board the air plane. He is subjéct to the so-called “use” tax. Another person may drive to the pace fat his carat the facility’ provided, - a . Wg a C [Sem ee o \ owen B I. UNITED STATES’ CONSTITUTIONAL 7 - PROVISIONS IN VOLVED © ARTICLE I, SECTION 8, CLAUSE 3: Section 8. POWERS OF CONGRESS. (3) To regulate commerce with foreign na- ~ ‘tions, and among the’ several states, and with the Indian tribes; : Il. INDIANA STATUTES INVOLVED Airport Authority District Statute (Evans- ville), Acts of 1959 of the Indiana General As- “.. sembly, Chapter 15, page 32, the same being i a Burns Indiana Statutes, Annotated, Section. 14-1215, which provides as follows: “14-1215. POWERS OF THE BOARD. —In. | addition to the powers and duties conferred upon it elsewhere in this act (Sections aie —'14-1235), such board shall have full ; _ and authority to-do-all-acts essary or rea-. thereof, ‘the bined 1. Asa municipal corporation, in its name to sue and be sued in any court of a jur- ~ isdietion. 9. To adopt a schedule: of reasonable charges and to collect the same from-all users of facili- ‘ties and services within the. jurisdiction of the district. : 16. General Powers... o. . To manage and operate any and all airports and landing fields and other air ir. navigation fa- —EEE 24 cilities now or hereafter acquired or main-— tained by any such district; and to lease all or ’- any part of any such airport or landing field and any buildings and other structures thereon and parts hereof and to fix, charge and collect rentals,: tolls, fees and Charges. to be paid for the usé of the whole or any part or parts of any such airports or landing fields, and other - air navigation facilities, and for aircraft land- ing thereon, and the servicing thereof; and to ‘erect and construct such public’ ‘recreational 7 . facilities as will not conflict or interfere with air operational facilities; and to fix, charge . and collect fees for ee and brivi- , ' s leges;.. —]HL ORDINANCE NO. 33 PASSED BY THE EV-, _ANSVILLE-VANDERBURGH AIRPORT A . THORITY DISTRICT ON FEBRUARY 26, 19 EVANSVILLE-VANDERBURGH AIRPORT | -- _AUTHORITY DISTRICT. - : ORDINANCE NO.. 33 | AN ORDINANCE ESTABLISHING AND: FIXING ~ ‘A USEAND SERVICE CHARGE FOR ALL -EN- PLANING PASSENGERS UTILIZING AIRPORT PREMISES AND FACILITIES. =~ - WHEREAS, the Acts of the Indiana General Assem- ‘bly, 1959, Chapter 15, Section 30, provides that tlie ac- quiring,. establishment, construction, improvenients, - .equipment and maintenance and the control and oper- _ ation of Airports and landing fields for aircraft under and pursuant to the Act creating the Evansville-Vah- “a _derburgh Airport Authority District, shall and are © . hereby declared to be a governmental function of gen- _ eral public necessity and benefit, and shall be for the ° ; ..° * ; ; use and general welfare of all of the people of the State. of Indiana, a8 well ags-all of the people residing in the — District of said Board, the same being coterminous . ' with the boundaries of: Vanderburgh County, Indiana; and) ae oe : .WHEREAS, the Evangville-Vanderburgh Airport — Authority District was duly -created. under and: pur- _ guant to the terms and -provisions-of the Acts of the ~ -* Indiana General Assembly, 1959, Chapter 15;and upon. - its ion and establishment, said Airport Authority - _-— District’ assiimed the responsibility for the care, con- | struction, improvement, equipment, maintenance and - control. of the Dress Memorial Airport located in Ev- : ansyille, Vanderburgh County, Indiana; and © _ -WHEREAS, the Board of Evansville-Vanderburgh . Airport ‘Authority District is empowered, pursuant to ~ . said Acts of the Indiana General Assembly, to enact — ordinances for.the purpose of adopting a schedule of rates and charges and to collect the same from all 7 ‘users of facilities and services provided by said Dress Memorial ‘Airport; and . Bn, Br) WHEREAS, the Evansville-Vanderburgh Airpo Authority District, pursuant to said Acts of the Indi- — ana General. Assembly, has the further power to fix; ~~. charge and collect rentals, tolls, fees and chargestobe = - paid for the use of the whole or any part or parts of © = ¢, 7 said Dress Memorial Airport and to fix, charge and & '. collect fees for public admissions and privileges; and WHEREAS, the Board of Evansville-Vanderburgh _ Airport Authority ‘District has determined, upon in- _ ° vestigation, that the use of said Airport and its various facilities is enjoyed by persons and taxpayers not only residing in Vanderburgh County, Indiana, but by num- and _ WHEREAS, the. Board of. said Airport Authority “we Dress Memorial Airport. _ \ _ erous persons residing outside the jurisdiction of said. ©. _ District who do not directly contribute toward the support, construction, improvement, equipment, main- tenance and control of said Aitport and 1 its facilities ; District has determined that there exists a need for additional revenue with which to defray the continued : _ . and future -costs of construction, improvement, equip- ment and maintenance of said Airport so as to provide for the reasonable safety, convenience and comfort of _ enplaning passengers using the facilities of Dress Me- morial Airport; and , ‘WHEREAS, the. Board of said vanisville Vander- burgh. Airport Authority District, after due and de- / liberate eonsideration, has determined that the respon- _ sibility for the support, construction, improvement, - equipment and maintenance wf said Airport’ and its - facilities, lies and should be shared more ‘equally by all those per sons who enjoy and use its facilities and _ Services ; a ta NOW, THEREFORE, BE IT RESOLVED D by the 3 Board of manners: Yapieciues) Airport. Authority eae District. as follows: ‘Section 1. Commencing ’ on July 1, 1968, there is hereby fixed, created and established a use and service charge of One Dollar ($1. 00) for each passenger en- - | planing any. commercial aircraft operated from the Section 2. Each commercial airline now or here- after operating commercial aircraft to and from the _ Dress Memorial Airport.is hereby charged, together with its. various agents. = travel agencies, servants, ennloyess. and representatives, with the responsibility of collecting said use and service charge. Section. 3. Said commercial airlines are hereby fur- ther directed to remit to Evansville-Vanderburgh Air- - port Authority District all the use. and service charges 7 . -. 80 collected: _ . ed - (a). for the period commencing July land terminat- . ing December 31 of each year, on or before Jan- - uary 31 next following said six month period; . (b) for the period commencing January 31 and ter- _. minating June 30 of each year, on or before etd 31 next following’ said six.month period. | - Said remittance shall be based upon the number of en- planing passengers at Dress Memorial Airport as here- | - inabove described in Section 2 of this Ordinance, times the use and service charge of One Dollar ($1.00), less six percent (6%) of all amounts so collected, which percentage is hereby allocated and allowed to said air-.__- lines for the purpose of defraying the administrative -* -eosts of collecting and. rémitting said use and service . | charge. ‘ Section 4. The term “each passenger enplaning any sommercial aircraft operated from the Dress ‘Memo- rial Airport” shall not include ‘nor shall the use and - service charge hereby created, apply to any active members of the United States Armed Forces: enplaning aircraft at the Dress Memorial Airport, or any person purchasing an airline ticket having, as an initial point of departure, a locality other. than Dress Memorial __ Airport, and whose flight either terminates-or requires an intermediate 0 temporary sop at Dress Memorial | “rport. | - : "Section 5. All revenue collected from said ‘use da service charges shall. be held by the Evansville-Van- — 28 es _ der gh Airport’ J Author ity District . in a i aeeicels | nd for the purpose of defraying the present and fu- ture costs incurred by said Airport Authority in the : construction, improvement, equipment; and mainte-. ‘nance of said. Airport’ and its facilities for the con- ; : tinued use and future enjoyment by all users thereof. Section 6. If any provision or clause. of this Ordi- | _ nance or the application thereof to any person or cir- | cumstance is held invalid, such invalidity shall not af- fect other provisions or applications of this Ordinance which can be given effect without the invalid provision or ‘application, arid to this end the provisions of this. | Ordinance are declared: to be severable. - Section 7. “This Ordinance shall’ be in full force aiid effect upon its passage-and approval’ by the Board of Evansville-Vanderburgh Airport. Authority District . a8 provided by: law; and shall remain in full-force and effect until amended,’ modified or. revoked by ‘the - | | Board of said Distéict, -. . PASSED by the Board of Birpitaville-Wasdentuarh: _ Airport Authority: District on this 26th day of Feb-__ ruary, 1968, and on-said day signed by the President and attested by the Secretary of Evansville-Vander- i burgh Airport Authority District. eg io . [s/. Kenneth C. Kent | | Kennéth C. Kent, President ATTEST: /s/ Robert M. Leich : ; Robert M. Leich, Secretary Big , y i IS / Gong” . or, . q a _ ae Ap. cg Cae re sy Ee Oe : APPENDIX c. OPINION OF NEW HAMPSHIRE SUPREME - =, COURT © °. \ Merrimack, No. 6086.0 : : "NORTHEAST AIRLINES, Iné. & a. os é' Vv. | “NEW. HAMPSHIRE AERONAUTICS -COMMISSION.€a.-° January 29, 1971 ) bein Millimet, McDonough, Stahl &" Branch and ’ Robert A: Backus (Mr. i A. Milliinet pray) for ~ UK ' the plaintiffs. ‘Warren B. Rudman, Attorney dorset ‘ind W. Mi. -chael Dunn, Assistant Attorney General poe Dunn * . orally), for the defendanfjs., ce - DUNCAN, J. By petition for declar atory ‘ilainoat: the plaintiff airlines question the eonstituticnality of.” RSA 422:43 (supp.), imposing upon them, as common : * carriers of passengers for hire by,aircraft on regular schedules, a service fee of one dollar for each’ passen- | _ ger emplaning upon their aircraft at publicly operated landing areas in this State. For the three-year period a presently involved, the fees charged to the plaintiff... Northeast Airlines, Ine. have averaged somewhat over’ $41,000 a year, and to the plaintiff ‘Mohawk Airlines a little over $2600..The facts were stipulated by the. parties, and ‘the Superior Court, (Loughlin, J.) re- — served and transferred without ruling: all questions © of law presen When first t Btore this court as a sobsonel: in sie. form of House Bill 435 at the 4959 session of the legis- 5. 80° Taft, the service fee was consideredf by reason of: my Watutory definition (RSA 422:3(II)) to be applicable only to carrier's engaged solely in intrastate commerce, and was considered not to violate the Constitution of this State, so long as it was reasonable recompensefor - facilities furnished. Opinion of the Justices, 102 N.H. 78, ‘150 A. .2d°522 (1959). It was intimated that objec- tion because of its effect upon interstate commerce was not likely in view'@f Aero Transit Co. v. Comm’rs, 332 U.S. 495, 92 L.Ed. 99, 68 S.Ct, 167 (1947) and Tirrell = ‘v. Johnston, 86 N.H,.530, 171 A. 641 (1934). 7d. at 75, 150 A.2d at 5 Ag enacted in 1959, the statute was made applicable - to common carriers of ‘passengers “whether. in inter- state or intrastate operations” (RSA 422:43); and the phrase “passenger carrier by aircraft” was substituted for the phrase “air carrier” used by the bill. Thus House Bill 435 as-enacted was made applicable to inter- . state as well as intrastate commerce. a, Th plaintiffs suggest that because of these and later -. _ changes, it cannot be said that section 43 (supp.) has “ever been reviewed by this court.” While this may be so, the fact: remains that the essential characteristics ‘ of the charge or fee were considered in Opinion of the 4 ‘ Justices, supra, and it was upheld. See also Opinion of the: Justices, 94\N.H. 513, 52 A. 2d 859 (1947). We continuéto regard the charge as being what it pur- ports to be: a “service fée on (common) carriers” of passengers for hire on a regular schedule; while s. 44 of the act imposes a like charge upon carriers under contract or by charter. RSA 422:44. > We also regard the charge as one levied upon the carrier and not the passenger, although we recognize ., that.the statute expressly, provides that it shall not -* _ ae 31 : e*, Ae prevent the carrier from collecting the fee over’ from its passengers. In this connection we note also that by. reason of a 1969 amendment the amount of the fee now depends not only upon the number of passengers car- — . ried, but-also upon the gross weight of the aircraft... RSA-422:43 (supp.). Thus for planes having a gross. ° weight of less than 12,500 pounds, which are crafts de- scribed. by federal statute as “small aircraft” (26 U.S.C.A. s 4263 (d) (1967),.the fee is one-half: of that: assessed per passenger against the plaintiffs, which _ operate heavier aircraft. Since we-accept the. view that the charge is levied upon. the carrier, we do not reach the. argument advanced by the plaintiffs that the statute invades the constitutional rights of :passen- gers tg travel interstate. See Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed..2d 600, 89 S.Ct. 1322 (1969). Our conclusion that the fee is levied upon the carrier is fortified not only: by the express language of the statute, but also by the provision originating wi House Bill 435 supra, that the proceeds of the tax shal be covered into the aeronautical fund established by | section 42, for the purpose of establishing and main- taining air navigation’ facilities, and liquidating obli- — _ gations incurred under the aeronautics act. RSA 422: 42. The cases from other jurindicticna upon which the plaintiffs rely in support of their ‘arguments do not | i persuade us that our statute must be held invalid. In Allegheny Airlines, Inc. v. Sills, 110 NJ. “Super. 54, 264 A. 2d 268. (1970), a statute under attack -would have _ imposed a service charge for the benefit: of munici- . palities which did not contribute to the management or cost of operation of the airport in question. Hence - the. court concluded that the — could not be Jus- 7 32 tified as a service charge, and was invalid as a tax ‘upon interstate commegce. dn holding the charge in- valid, the court relied. upon Northwest Airlines, Inc. v. Joint City-County Air. Bd., 154 Mont. 352, 463, P.2d 470 (Mont. 1970). That case involved a statute more ‘ closely resembling our own. It was considered by the: Montana court to be in essence a tax upon the: passen-_ 7 gers, and in holding it invalid the court placed substan- . tial reliance upon Passenger Gases, 48 U.S. (7 How.) - 283, 12 L. Ed. 702 (1849), and upon Crandall v. Ne- vada, 73 U.S. (6 Wall:) 35, 18 L. Ed. 745 (1867). which invalidated a tax expressly imposed‘ upon passengers.. Those decisions in turn relied upon McCulloch v. Mary- . land, 17 U.S. (4 Wheat. 316, 4 L.Ed. 579 (1819) and its unsound declaration . . . that the power to tax is a | power to destroy” ( Tirrell v. Johnston, 86 N.H. 530, - ' 547,171.A: 641, 651 (1934) a declaration to which Mr. _ Justice Holmes later rejoined, in Panhandle Oil Co. v. - Knox, 277 U.S. 218, 223, 72 L.Ed. 857, 859; 48 S.Ct. = 451, 453 (1928) : “not « - while this Court sits.” Even in cases involving taxes upon intérstate com- — merce, which this case is not,.the law has go far ad- vanced ‘since McCulloch v. Maryland supra, that a_-re- cent comment could say that’ “Both judicial and legis- lative developments stemming from +the Supreme . Court’s decision in Northwestern. (Northwestern States Portland Cement Co. v. Minnesota, 858: U.S. _ 450, 3 L. Ed. 2d 421, 79 S. Ct. 357 (1959)] suggest that the critical ‘issue in state taxation of interstate - commerce is how interstate commerce may be taxed rather than whether it may be taxed at all” (citing General: Motors Corp. v. District, 380 U:S. 558, 14 L. Ed. 2d 68,.85-S. Ct. 1156 (1965) and Norfolk & W. Ry. v. Missourt State Tax Comm'n, 390 US. 317,19 L. Ed. / 2d 1201, 88 S. Ct. 995 (1968) ). Note,. = U. of Chi. L. Rev. 186, 204-05. Most recently the Northwest Airlines case supra Was . followed and heavily ;relied upon in Evansville- Van- derburgh Airport re Inc., 265 N.E. 2d 27 (Ind. 1970), jnvalidating a dis- trict ordinance which imposed a use and service charge for the purpose of defraying the costs: of the district’s | airport, upon the ground that the “tax imposed” was | not “reasonably related to the use of facilities” and was therefore a burden: upon interstate commerce, Since '. we do not regard the authorities relied upon by this . andthe Northwest! Airlines case as controlling, we do not adopt the views which they express. ) Many of the plaintiffs’ objections to the carrier serv- ice fee are answered by the comprehensive. opinion of Peasleeé; ©. J.in Tirrell v. Johnston supra, upholding the validity of the gasoline road toll under state and Federal Constitutions. As was there observed; “The ‘state may tax things used -in interstate commerce as it taxes other like things. This-is not taxing interstate _ commerce.” Id. at 551, 171 A at 653. However, we _ | not consider the charge to be an act of the State “i its sovereign capacity as a layer of taxes for the nap: port of government or a regulator of conduct.” Tirrell v. Johnston, supra at 540, 171 A. at 647. We regard it rather.as a “charge for the use of facilities furnished. v Id. at 541, 171 A. at 647. The complaint that the charee| is discriminatory be- cause imposed upon an arbitrary class of users includ- ing the plaintiffs is not convincing. Other classes of - ' . users, whose use of the facilities is only irregular, or . for purposes incidental to. business other than the _ _ business of carriage of passengers by air for hire may hority District v. Delta Airlines, a eee - reasonably bs differently. classified, as ‘may. the car- riers of passengers by lighter craft, having: smaller. carrying capacities. See Morf v. Bingaman, 298 U.S... 407, 80 L. Ed. 1245, 56 S.Ct. 756 (1936). Even a reason- able charge to federal instrumentakties making ‘sub- . stantial” use of public airport facilities is sanctioned: by federal statute. 49 U.S.C.A. § 1110 (4). ~ We conclude that the charge int ‘question is what it purports to be, a fee for the use of facilities furnished by the public. Its incidence depends upon an event which is wholly intrastate, namely the emplanement “ of passengers within this jurisdiction at a facility pub- , liely provided and supported ; the burden upon the car- rier is minimal, and. is not claimed to. exceed reason- Able compensation for the use provided. Aero-Transit Co. v. Comm’rs, 382 U.S. 495 supra; Capitol Grey- 7 hound Lines v. Brice, 389 U.S. 542, 94 L. Ed. 1058, 70: S. Ct. 806 (1950) ; Bode v. Barrett, 344 U.S. 583, 97 _ L. Ed. 567, 73 S. Ct. 468 (1953) ; Annot., 97 L. Ed. 573 (1953); Annot.; 17 A.L.R. 2d 421 (1951). The fees imposed are valid and collectible, and a de- ' claratory-judgment in favor of the defendant Director should be entered accordingly.. | | Judgment hd the defendants. _. All concurred. it} ) ‘ G --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0383%3A02. Public record. Not legal advice.