# Appendix — United Air Lines, Inc. v. Mahin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0115%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 410 U.S. 623 ## Text Dates of Relevant Proceedings in Lower Courts ...... ‘Amended Complaint in Chancery / 1 Motion for Temporary Injunction .................. 24 be er, Injunotion OTE oi vet cccrenscnceeeds 25 wer of Shell Oil Sun J 26 a swer by Illinois Department of Revenue, et al. .... —ͤ— e nũ •³)0 „„ „„ „„ „ „„ „ %% (—I—! ß ĩ ĩ ͤ rrr rey eee Amended Answer by Shell Oil Company ............ 46 beer of Permanent Injunetion CCC 47 wer to Amended Complaint filed by Illinois Department % Vw as canis 48 sport of Proceedings before the Circuit Court of @ ook County, Illinois—testimony of .............. 49 | William . 655) . ͤ scenes aW «õ⏓:i:: : th½„ñt % %%% „„ „„ „ „6 ere ee eee eee BZR＋['9g»᷑öꝶ „„ „4 Bohn Henry Stark, rr ies K Goodwine, Jr. ............ceccccccecces 108 en D. Maxfield ...................... . 128 ohn Henry Stark, Sr 163 Charles % /// 0 ereereeeeeeeeeeeeeeeeeeeeeeee sy rae 7 5 ne —WB— R＋h % „„ a . — Pace or Arran TTT 192 Opinion of the Supreme Court ot the State of Illinois. . "Petition for Rehearing in the Illinois Supreme Curt. 206 Order of Illinois Supreme Court denying . for Rehearing ; Order of Jastice Daniel P Wack testi Anadis mmpletio of Appeal Proceedings in United TTC... 227 be Court of the United Stats 228 Trial Exhibits ..........20.0cceeeeceeeeeeneeeeeees 229 esti NE os och av co ⅛ T 230 WE RE Fos cocks cus tespececees 231 %% YYAVJAA ll 231 %%% ̃ V „ 232 5 United Exhibit 000 . 233 1 United Mixhibit 21 111 234 United Exhibit ùũù . 235 United Exhibit 2% es 236 United Exhibit ũ575 seen 237 2120 238 % P 240 Defendants Exhibit 1 i 241 „„ „% pf oe 9 PN SRE S wo 1. DATES OF RELEVANT PROCEEDINGS Complaint in Chancery, filed September 12, 1963, with exhibits. Motion for Temporary Injunction, filed September 17, 1963. : Temporary Injunction Order, entered on September 19, 1963. oe Amended Complaint in Chancery, filed September 25, 1963, with exhibits. Motion for Temporary Injunction, filed October 17, Order for Temporary Injunction, entered on December 13, 1963. , Answer of Shell Oil Company, filed December 19, 1963, Answer of Harry H. Hulman, irector of the Depart- ment of Revenue, filed January 10, 1964. Stipulation, filed January 19, 1966, with appendices. Interrogatories, filed January 17, 1966. Reply to interrogatories, filed November 15, 1966. Additional Stipulation, filed January 18, 1968. oo Answer of Shell Oil Company, filed January 26, ; Order setting cause for trial and granting leave substitute Theodore A. Jones as a feat L. entered December 12, 1967. Answer (of Harry L. Hulman, Director of the Depart- ment of Revenue) to Amended Complaint, filed Feb- ruary 10, 1968. Order of Permanent junction, entered on February, 14, 1968. 11 17. Report of Proceedings in the Cireuit Court of Cook County, Illinois held on February 14, February 15; February 16 and February 19, 1968. . Opinion of Circuit Court of Cook County, Illinois, er eee 1968 and ordered filed on Final Deoree of Cireuit Court of Cook County, Illinois, entered on December 23, 1968. 5 Notice of Appeal to Illinois Supreme Court, filed Janu- ary iB, 1969. of the Supreme Court of the State of Illinois, filed April 1, 1971. Petition for rehearing * in Illinois Supreme Court, filed May 1, 1971. Order entered October 4, 1971, denying petition for rehearing. Notice, motion and order of Justice Daniel P. Ward filed October 15, 1971, staying the mandate until com- pletion of appeal proceedings before the United States Supreme Court. Notice of Appeal to the Supreme Court of the United States, filed December 20, 1971. REET * * F A Nat LE ate RY NE SATS 0381 Filed Sept. 25, 1963 ics or Iturmons rig Corr or Coox IN THE CIRCUIT COURT OF COOK COUNTY HARRY L. HULMAN, Director of Revenue 8 0 17049 This Amended Complaint is filed pursuant to and in ac- cordance with the order entered by Judge William V. Brothers on September 19, 1963. AMENDED COMPLAINT IN CHANCERY UNITED AIR LINES, INC., plaintiff, for and on behalf of itself and all others similarly situated, by its attorneys and attorneys for all other members of the class of taxpayers to which plaintiff belongs, complains against HARRY L. HULMAN, Director of Revenue of the Depart- ment of Revenue of the State of Illinois, WILLIAM d. CLARK, Attorney General of the State of Illinois, WIL- LIAM J. SCOTT, Treasurer of the State of Illinois, and SHELL OIL CO., a Delaware corporation, defendants, and alleges as follows: * Numbers in brackets [] throughout Appendix indicate page references to official record. (039] 1. Plaintiff is a corporation subsisting under the laws of the State of Delaware, with its principal place of business located at 1200 Algonquin Road, Elk Grove Town- ship, Cook County, Illinois, and is qualified to do business in Illinois. 2. Defendant Harry L. Hulman is the duly appointed, qualiſied and acting Director of Revenue of the Department of Revenue of the State of Illinois, and in that capacity is charged with administering and enforeing the revenue acts of the State of Hlinois including the Use Tax Act, Ill. Rev. Stat. 1961, ch. 120, §§ 439.1 et seg. . ‘Defendant William G: Clark is the duly elected, quali- fied and acting Attorney General of the State of Illinois, and in that capacity is charged with the duty of represent- ing defendant Harry L. Hulman, as Director of Revenue, in all legal proceedings involving the administration, en- forcement and collection of the Illinois use tax. A: ‘Defendant William J. Scott is the duly elected, quali- fied and acting Treasurer of the State of Illinois, and in that capacity is the legal custodian of funds in the State Treasury ‘resulting from and created by the collection of Ilinois use tax. 44. ‘Shell Oil Co. is a corporation subsisting under the laws of the State of Delaware, with its principal place of business located at 50 West 50th Street, New York City, New York, and is qualified to do business in the State of Illinois. 1040) 8. The class to which plaintiff belongs, and on behalf of which it has instituted this action, is desoribed in paragraph 27. 6. Plaintiff brings this action under the general chan- cery jurisdiction of this Court to enjoin imposition of il- legal, unauthorized and invalid tax based on the authority 3 ot Owens-Illinois Glass Co. v. McKibbin, 385 III. 245, 256 _ (1944), in which the Illinois Supreme Court stated as follows: — Prom the foregoing resumé the enjoining of the col- lection of illegal taxes constitutes an exception to the general rule that equity will not take jurisdiction of a cause when there is an adequate remedy at law. It is established that where a tax is unauthorized by law, or where it is levied upon property exempt from taxa- tion, equity will take jursdiction and enjoin the collec- tion of the tax. This constitutes an independent ground of equitable relief, and in such cases it is not necessary that special circumstances exist to authorize issuing an injunction. It is also the rule in such cases that where remedies are provided by statute they are cumulative, and are exclusive only where they have been first in- voked by the taxpayer. And it is to be noted this ex- ception to the general rule applies only to the illegal and unauthorized imposition of a tax, and not to ir- regularities in levying a lawful tax.” See also Johnson v. Halpin, 413 IIl. 257 (1952). 7. To the extent that payments of the use tax may be | made under protest by plaintiff or other members of the dalass to which plaintiff belongs, this action is also brought pursuant to Sections 2a and 2a.1 of the Act of June 9, 1911, as amended (known sometimes as the Public Moneys Act or as the Protest Fund Act), Ill. Rev. Stat. 1961, ch. 127, $§ 172, 172(a). 8. Plaintiff is, and continually since January 1, 1960 (the period to which this complaint pertains) has been, the [041] holder of certificates of public convenience and necessity issued to it by the United States Civil Aero- nautics Board under the provisions of the Federal Aviation _ Act of 1958, as amended, 49 U.S.C. §§ 1301' et seq., author- _ izing it to engage in the transportation of persons, prop- erty and United States mail by air on regularly scheduled 4 flights between designated terminal and intermediate points on routes described in such certificates. A map of plaintiff’s certified routes is attached hereto and incorporated herein as Exhibit A. Plaintiff thereby also is authorized to oper- ate charter flights without regard to the points named in such certificates. 9. Pursuant to these certificates of public convenience and necessity plaintiff performs, and during all or a por- tion of the period since January 1, 1960, has performed, common carriage by aircraft of persons, property and United States mail on scheduled fiights between points within the State of Illinois, on one hand, and points within the States of Massachusetts, Connecticut, Rhode Island, New York, Maryland, Virginia, Pennsylvania, Ohio, Michi- gan, Indiana, Wisconsin, Minnesota, Iowa, Nebraska, Mis- souri, Colorado, Utah, Nevada, Idaho, Washington, Oregon, California, Hawaii and the District of Columbia on the other hand. During this period plaintiff has also performed common carriage by air of persons and property on charter flights between points within the State of Illinois and points outside the State of Illinois, including flights to Canada. [042] 10. The points within the State of Illinois from and to which plaintiff presently operates aircraft are O’Hare International Airport, Chicago, and Quad-Cities Airport, Moline. For a period after January 1, 1960, plaintiff also operated aircraft from and to Midway Airport, Chicago. 11. All flights to and from Chicago are, and since Jan- uary 1, 1960, have been, from or to points outside Illinois, except for limited scheduled service between Chicago and Moline and some intrastate charter flights. 12.. In excess of 99.5% of all flights of plaintiff’s aircraft departing pursuant to plaintiff’s certificates of public con- venience and necessity since January 1, 1960, from Midway 5 and O’Hare Airports have been according to published schedules filed with the United States Post Office Depart- ment and the Civil Aeronautics Board. Most of the remain- ing % of 1% have been charter flights. There has also been a de minimis amount of training, testing, ferry, and non- revenue flights for purposes of positioning aircraft, which are not flights pursuant to plaintiff’s certificates of public convenience and necessity. 13. At present, and since J: anuary 1, 1960, most, if not virtually all, plaintiff’s flights departing from O’Hare and Midway Airports take and have taken on fuel, either as aviation gasoline for piston engine aircraft or kerosene for turbine aircraft. 14. All such fuel loaded aboard plaintiff's flights depart- ing from Chicago is, and since January 1, 1960, has [043] been, purchased by and delivered to plaintiff outside IIli- nois, specifically at East Chicago and Hammond, Indiana, pursuant to contracts negotiated and executed outside Illinois. : 14A. The seller of all such fuel is, and during the applicable period was, Shell Oil Co. Shell Oil Co. does not, and during the applicable period has not collected Illinois use tax from plaintiff, a practice established in 1955 and continued uninterrupted since then with the repeated ap- proval of authorized representatives of the Director of Revenue and his predecessors in office. 15. After purchasing the fuel and receiving delivery of it outside Illinois, plaintiff causes, and since January 1, 1960, continuously has caused, such fuel to be transported by truck or pipeline to storage facilities near and on O’Hare and Midway Airports. 16. As operations require, the fuel is, and since January 1, 1960, has been, withdrawn from the storage facilities at Midway and O’Hare Airports for loading aboard plaintiff’s flights departing from such airports. Such fueling is cus- tomarily done immediately prior to departure. 17. The actual course that all plaintiff's flights take, or have taken since January 1, 1960, is and has been governed by the Federal Aviation Agency, established by the Federal Aviation Act of 1958, supra. Such actual courses are deter- mined by “departure routes” which govern the climb portion of a flight, and “airways” which govern the cruise portion. The same departure routes and airways customarily [044] are assigned to plaintiff for particular flights, although there may be and are certain variations on a given day from either such typical departure routes or airways depending on weather and other operating conditions. Despite these day-to-day variations, plaintiff’s flights departing from O’Hare are being, and flights which have departed from O’Hare and Midway Airports since January 1, 1960, have been, flown on what can be accurately described as “typical” departure routes and airways. Although such departure routes and airways have varied from time to time and according to the type of aircraft being flown, at present for eastbound flights there are three principal ones, for north- bound two, and for westbound four. 18. Pursuant to regulations of the Federal Aviation Agency, all aircraft operated by plaintiff are, and since January 1, 1960, have been required to maintain a “reserve fuel supply,” above and beyond that required to transport a plane to its scheduled destination. Such reserve fuel requirements have varied from time to time, and vary according to the type of aircraft involved and with antici- pated weather conditions. A current example is that the reserve fuel requirement for a Boeing 720 or a Douglas DCS four-engined jet is 8,000 pounds of fuel, plus, if weather conditions require the specification of an alternate „FFC 8 7 destination on the flight plan, such additional fuel as is required to take the plane from its scheduled destination to the specified alternate point for such flight. Typical alter- nate points for jet aircraft destined for Chicago include 1045 Minneapolis, Omaha, Milwaukee, Detroit and Cleve- land. 19. Plaintiff has established, in the conduct of its flight operation, reserve fuel requirements which are, and since January 1, 1960, continuously have been, in excess of those of the Federal Aviation Agency. For example, plaintiff's current reserve requirement for Boeing 720 and Douglas DC-8 aircraft is a minimum of 12,000 pounds, plus, if weather conditions require the specification of an alternate destination on the flight plan, the greater of 3,000 additional pounds of fuel or such additional fuel as is required to take the plane from its scheduled destination to the specified alternate point for such flight. 20. Because of the reserve fuel supply required by the Federal Aviation Agency, as supplemented by plaintiff’s operating regulations, plaintiff's aircraft landing at Midway and O’Hare Airports almost always have a considerable that virtually all, if not all, of plaintiff’s planes which have arrived at Midway or O’Hare Airports since January 1, 1960 have had sufficient fuel aboard when they landed to take them, without additional fuel, outside Illinois on the plane’s actually succeeding flight on typical (as described in paragraph 17) eastbound or northbound airways, taking into account fuel consumed in taxing, n- up, take-off, _ climb and cruise. According to engineering fuel consump- tion data, confirmed by actual spot checks, a similar condi- tion appears to have existed [046] on virmally all flights ' departing Illinois using typical westbound airways, with the exception of a small number of piston angine flights to 8 Kansas City. It follows, from a traditional and realistic first-in, first-out viewpoint of fuel consumption, that with de mimimis exceptions, none of the fuel loaded aboard at O’Hare and Midway Airports by plaintiff since January 1, 1960, is or has been actually used or consumed within the borders of Illinois (excluding certain intrastate flights on which the applicable Illinois use tax has been and is being paid). 21. By a series of letter opinions issued in 1955 and thereafter, examples of which are set forth as Exhibits B and C attached hereto and incorporated herein, the Director of Revenue, and his predecessors in office, have taken the position that fuel purchased by interstate carriers outside Illinois, brought into and temporarily stored by them in Illinois, is subject to use tax only to the extent of the portion of such fuel actually used or consumed by being burned off within Illinois. Such ruling also relieved retailers of the fuel from the duty of collecting the use tax in such situa- tions, and required the carrier to directly file a use tax return and pay the tax according to what was actually burned off by it within Illinois. 22. The interpretation set forth in the preceding para- graph was, upon information and belief, repeatedly reiter- ated since 1955 by auditors representing the Director of Revenue during the examination of the books and records of numerous carriers and by other representatives of the Director [047] of Revenue upon inquiry by interested per- sons. This interpretation in fact was a publicly known policy and practice of the Director of Revenue. 23. This interpretation of the Director of Revenue, and his predecessors, continuously in effect from 1955 until June of 1963, has, upon information and belief, been known and relied upon by numerous carriers and by numerous retailers of fuel. 9 24. This interpretation of the Director of Revenue, and his predecessors, has been known and relied upon by the plaintiff since 1955, Plaintiff accordingly has for all periods (a) On all fuel consumed on flights originating within and terminating within Illinois (intrastate operations) and (b) On a portion of the fuel deemed to have been used and consumed (burned off) in Illinois on flights departing from Midway and O’Hare to points outside Illinois. The computation of the use tax paid under this arrangement is and has been pursuant to a formula accepted by representatives of the Department of Rev. enue during several audits since 1955. defendant Theodore J. Isaacs, on June 3, 1963, issued an interpretation in the form of a Bulletin entitled, Tem- porary Storage of Motor Fuel under Provisions of the Use Tax Act”, a copy of which is attached hereto and incorpo- rated herein as Exhibit D. This Bulletin provides in part that temporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the airplane, railroad engine or truck. At this point the fuel is converted into its ultimate use, and, therefore, a taxable use occurs in Illinois.“ 10 Bulletin) craft or vehicles, and that therefore such fuel is subject to Illinois use tax, regardless of whether it: (a) is used and consumed in the integral conduct of interstate and foreign commerce, or (b) in whole F out- side IIlinois. 27. By this interpretation, the Director of Revenue is asserting that use tax due as aforesaid on all fuel loaded in Illinois aboard aircraft of the plaintiff and all other air carriers and upon the vehicles or craft of all railroads, truck lines, bus lines, barge lines and steamship companies [049] which operate in interstate or foreign commerce as common, contract or private carriers. Such carriers consti- tate a class, all of which have the same issues of law in fact, as does the plaintiff—to wit, the applicability of the Illinois use tax to fuel which, having been purchased outside Illi- nois and stored in Illinois by the carrier, is loaded by it in Illinois aboard craft and vehicles to be used and consumed in propelling such craft or vehicles in interstate and for- eign commerce. W. By this interpretation, the Director of Revenue applies the use tax to fuel in a manner different from all other types of tangible personal property, in that the act of preparing to transport some or all of the fuel outside the State is deemed to be a taxable use. No other interpre- tation by the Director of Revenue applies such a rule to any other types of tangible personal property. 29. By this interpretation, the Director of Revenue dis- tinguishes, for purposes of applying the use tax, the type of container in which fuel is stored, in that fuel stored in the tank of a craft or vehicle is not considered temporary ‘storage in contrast to storage in any other form of con- tainer or facility. No other interpretation by the Director 11 of Revenue applies such a rule to the storage of any other type of tangible personal property. 30. The interpretation of the Director of Revenue set forth in the Bulletin dated June 3, 1963, is contrary to the intention of the General Assembly and the express language [050] of the Use Tax Act in the following respects : (a) it is contrary to Section 3 of the Use Tax Act, Tl. Rev. Stat. 1961, ch. 120, § 439.3, which imposes the tax .. . upon the privilege of using in this State tang- ible personal property . . . [emphasis supplied] ms (b) it is contrary to the plain meaning and in- tended scope of the definition of “use” set forth in Sec- tion 2 of the Act, id. § 439.2; (e) it is contrary to the plain meaning and inten- tion of the “temporary storage” exemption set forth in Section 3 of the Act, id. § 439.3. 31. The allegations set forth in the preceding paragraph are confirmed by the following rules of statutory construc- tion uniformly followed by the Conrts of this State: (a) the interpretation of the Director of Revenue would, as alleged in paragraphs 28 and 29, apply the use tax on fuel in a way different from the application of such tax to all other types of tangible personal prop- erty, thus infringing upon the rule of uniform and con- sistent construction of tax acts; (b) the interpretation of the Director of Revenue would be contrary to the common and ordinary mean- ing of the words “use” and “temporary storage”. See Revean v. Nudelman, 370 III. 180, 184-5 (1938) ; (c) the interpretation of the Director of [051] Rev- enue would be contrary to his long-continued interpre- tation and application of the Use Tax Act relating to fuel loaded in Dlinois aboard craft and vehicles en- gaged in interstate and foreign commerce, which inter- pretation and application can be deemed to have been 12 approved by. the General Assembly because of its fail- ure to amend or clarify the relevant statutory lan- guage, i ly, when it repeatedly amended since 1955 ons 2 and 3 of the Act. See e.g. People v. Lyons, 1 III. 2d 409, 414 (1953) and | (d) the interpretation of the Director of Revenue would violate the established rule, as stated in Ingersoll Milling Machine Co. v. Department of Revenue, 405 III. 367, 373 (1950): “Taxing statutes are to be strictly construed and their language is not to be extended or en- larged by implication beyond its clear import, but in cases of doubt such laws are construed most strongly against the government and in favor of the taxpayer.” 32. The interpretation of the Department of Revenue is contrary to the Constitution of Illinois in the following respects : (a) the application of the use tax to fuel in a man- ner different from all other types of tangible personal property, as more fully set out in paragraph 28, con- stitutes an unreasonable classification in violation of the Revenue [052] Article, Article IX, §1; : (b) the application of the use tax according to the type of container in which the fuel is stored, as set forth in paragraph 29, constitutes an unreasonable classification in violation of the Revenue Article, Article IX, $1, in that (i) it applies the temporary stor- age exemption to fuel in a way different from all other types of tangible personal property, and (ii) further, it discriminates against air and water carriers which are less able than land carriers to transport fuel in tanks unconnected with the motive power of the craft or vehicle; (e) the application of the use tax as set forth in su (a) above violates the Due Process Sec- tion, Article II, § 2; 13 (d) the application of the use tax as set forth in subparagraph (b) above violates the Due Process Sec- tion, Article II, § 2; of using tangible personal property im this State [em- phasis [053] supplied)”. III. Laws 1955, p. 2027, as amended, III. Laws 1959, p. 654, § 2. ; 33. If the interpretation of the Director of Revenue is construed to impose the use tax on either (i) the loading in Illinois of fuel aboard aircraft or vehicles about to com- mence journeys in interstate or foreign commerce or (ii) upon the use or consumption of the fuel in the inter- state or foreign journey, such interpretation would violate the Commerce Clause, Article I, §8, cl. 3, of the United States Constitution, in that it would directly burden and would tend to create multiple burdens on interstate com- merce. 34. If the interpretation of the Director of Revenue is construed to impose the use tax on either (i) the loading in inois of fuel aboard craft or vehicles about to commence journeys in foreign commerce, or (ii) upon the use or con- ‘sumption of the fuel in foreign commerce, such interpre- tation would violate the Import-Export Clause, Article I, $10, cl. 2, of the United States Constitution. 35. If the interpretation of the Director of Revenue is “sonstrued to impose the use tax according to the distinc. tions more fully outlined in paragraphs 28 and 29, such imposition would, as an unreasonable and arbitrary classifi- ‘tation, violate the Due Process and Equal Protection Glauses of the United States Constitution. 14 36. The Director of Revenue seeks to enforce the Bulle- tin retroactively as well as prospectively. Such retroactive interpretation, which would reverse the long [054] con- tinued publicly announced practice and letter rulings of the Department of Revenue, which interpretation can be deemed to have been approved by the State Legislature, would violate the Due Process and ex post facto law pro- visions, respectively Article II, §2 and §14 of the Illinois Constitution, as well as the principle against retroactive — application of a changed administrative interpretation established by the Supreme Court in Pressed Steel Cor Co. v. Lyons, 7 IIl. 2d 96, 105-6 (1955). 37. The retroactive application of the Bulletin of the Director of Revenue, as outlined in the preceding paragraph, also would violate the Due Process Clause of the Four- teenth Amendment of the United States Constitution. 38. Plaintiff and all other members of the class to which it belongs are without an adequate remedy at law, because unless each of them complies with the regulation herein complained of, and pays an Illinois use tax on all fuel loaded aboard craft or vehicles in this State, they will severally be subjected to numerous actions instituted against them by the Department of Revenue through the Attorney General of Illinois. Moreover, those members of the class who do not directly file use tax returns and remit the use tax, but who have it collected from them by the retailer selling such fuel to them outside IIlinois similarly have no adequate remedy at law. ‘WHEREFORE, plaintiff prays of this Court for and on behalf of itself and all other members of the class above described as follows: [055] I. To grant forthwith a temporary writ of injunction directed to defendant Harry L. Hulman as Director of Revenue of the Department of Revenue of 15 the State of IIlinois, his representatives and successors in office, and William G. Clark, his representatives and Successors in office, enjoining each of them, until further order of this Court, from in any way, directly or indi-. rectly, imposing, assessing (including making any final denial of a claim for credit or refund pursuant to an Rev. Stat. 1961, ch. 127, § 172, by a member of the class to which plaintiff belongs who paid the use tax under protest on the use of fuel within the scope of this litigation) or collecting or attempting to impose, assess or collect a use tax upon all fuel which, after being purchased outside Illinois and stored in Illinois by a common, contract, or private carrier by air, land, or water, is loaded in Illinois by such carrier aboard craft II. To grant forthwith a temporary writ of [056] in- junction directed to defendant Harry L. Hulman, as Director of Revenue of the Department of Revenue of the State of Illinois, his representatives and successors in office, enjoining each of them, until farther order of this Court from turning over to the Treasurer of Illinois any moneys paid to defendant Hulman under protest as use tax by or on behalf of the plaintiff or any other member of the class ( including payment under protest of use tax by a retailer who collected such tax from any member of the class) for fuel which, after being pur- chased outside Illinois and stored in Illinois, is loaded in Illinois by such carrier aboard craft or vehicles to be used and consumed in propelling such craft or vehi- 2a.1 of the Act of June 9, 1911, as amended, III. Rev. Stat. 1961, ch. 127, §§ 172, 172(a); 16 III. To grant forthwith a temporary writ of injunc- tion directed to defendant William J. Scott, Treasurer of Illinois, his representatives and successors in office, enjoining each of them until further order of this Court, from placing any such moneys into the General Revenue Fund or in any fund other than a Protest Fund main- tained by such defendant [057] for the purposes of this litigation ; IV. That in order to avoid a multiplicity of similar suits by members of the class to which the plaintiff belongs and for which the plaintiff is prosecuting this action, to forthwith grant a temporary writ of injunc- tion against all other members of the class, as defined in paragraph 27, from litigating by any procedure be- fore the Courts of this State against the State officers made defendants herein the substantive issues raised in this proceeding and diligently prosecuted by the plain- tiff herein, provided that no person within this class (i) is prohibited from paying the use tax under protest and filing a complaint in chancery for a temporary injunc- tion and a claim for refund or credit with the Director of Revenue pursuant to Section 2a of the Act of June 9, 1911, as amended, III. Rev. Stat., 1961, ch. 127, § 172, or (ii) from joining or intervening in this proceeding ; V. That, after full and complete hearing, to finally determine that the use tax sought be imposed, assessed and collected on fuel loaded in Illinois by common, con- tract or private carriers by air, land or water aboard craft vehicles to be used or consumed in propelling such craft or vehicles in interstate or foreign commerce is contrary to [058] the Use Tax Act and the Illinois Con- stitution, and/or the Federal Constitution as herein alleged ; VI. That after full and complete hearing to make permanent the temporary injunction orders set forth as I, II, and III; VII. That, after full and complete hearing, result- ing in a final determination in favor of the plaintiff and other members of the class pursuant to V. above, 17 to issue a writ of injunction to the defendant William J. Scott, as Treasurer of Illinois, ordering him to dis- tribute such portion of the Protest Fund deemed to have been collected contrary to law to the plaintiff and VIII. To grant to the plaintiff and all other mem- bers of the class such other further relief as may be just and equitable to do complete and substantial justice. Mark H. Berens 231 8. LaSalle Street Chicago 4, Illinois MAYER, FRIEDLICH, SPIESS, TIERNEY, BROWN & PLATT 231 South LaSalle Street Chicago 4, Illinois STate 2-0600 Of Counsel [059]: State or ILLIINOIS County or Coox 885 J 0 F. McERLEAN, being first duly sworn, deposes and says that he is Senior Vice President - Law of United Air Lines, Inc., plaintiff herein, and makes this affidavit. on its behalf, by and with its authority, that he has read the above and foregoing amended complaint, knows the con- ‘tents thereof, and that the matters and things alleged therein are true, excepting the allegations contained in paragraphs 22 and 23 of the complaint, which allegations he is informed and believes are true and correct. „ 2 2 „%%% eee „„ „„ „„ „„ „„ „„ C. F. McErlean SUBSCRIBED AND SWORN TO before me this ... day Dares ere „1963. *⁵*õrĩ „„ „„ „ „ „ „466 Notary Public U 8 aalinn 30 sainos d 1061 Exhibit B Richard J. Lyons Rules and Regulations Director Division Andrew Fasscao Assistant Director STATE OF ILLINOIS William G. Stratton, Governor DEPARTMENT OF REVENUE Springfield July 12, 1955 Honorable Paul J. Randolph 155 North Wacker Drive Chicago 6, Illinois Dear Representative Randolph: This is with reference to your telephone call of yesterday. If and when the Governor signs Senate Bill No. 510 (the Use Tax Act), we intend to interpret examption (b), in the part of Section 3 of the law dealing with exemptions that are allowed to prevent multi-state taxation, as meaning the transportation vehicles of any kind of interstate company (railroad, bus line, air line, trucking company, etc.). We think that this broad sense is the way in which the General Assembly intended “rolling stock” in this situation to be interpreted since the reason for the exemption (to prevent taxation by more than one state) applies as much to the rolling stock or transportation vehicles of one kind of in- terstate carrier as to those of another, where such trans- portation vehicles or rolling stock move in interstate ecommerce so as to be used in more than one state. Any other interpretation restricting “rolling stock” to the trans- _ portation vehicles of a railroad or some other one kind of _ interstate carrier would be discriminatory and, in our opinion, would not carry out the Legislature’s intention in 20 adopting this exemption provision, and we believe the pro- vision should be given a construction which makes it nondiscriminatory in effect when the. provision is reason- ably capable of such a construction. There is nothing in the provision which restricts its application to any particular kind of carrier except for “rolling stock” to be given its narrowest and most literal meaning, and we do not believe that this should be done when the result would obviously defeat the Legislature’s purpose by causing discrimination. Equipment (not transportation vehicles), gasoline and other supplies would not qualify as “rolling stock” under any reasonable interpretation of that phrase and so would not come within the exemption provision under discussion. If such items which are not within the exemption are pur- chased outside Illinois by a carrier, and some of the items or units thereof (such as so many gallons of gasoline) are used in Illinois and some of the items or units thereof (such as so many gallons of gasoline) are used outside Illinois, the carrier would be liable for the use tax on the items used in Illinois, but not on the items used outside Illinois assuming that the carrier keeps adequate records to aggregate the nontaxable from the taxable items. It should be pointed out that if a seller, when selling tangible personal property to the carrier for use, delivers the property from a point in Tilinois to the purchasing car- rier at a point in Illinois, the seller incurs retailers’ occupa- tion tax liability regardless of where the property may be used by the purchaser. This is just as true of rolling stock {transportation vehicles) as it is of gasoline and other kinds of tangible personal property. Please refer to paragraph 1 of subdivision II of Article 5 of the retailers’ occupation tax Rules and Regulations, a copy of which is enclosed. Nothing in the Use Tax Act changes the Retailers’ Occupa- tion Tax Act. 1 5 e ee Willard Ie 21 [062] August 26, 1955 Re: Your File 11-0—TIllinois Use Tax Phillips Petroleum Company Bartlesville Oklahoma Atrention: Mr. F. H. Chichester, Director—Excise Tax Gentlemen: Tuͤ0our letters of August 2 and 19, 1955, addressed to the Retailers’ Occupation Tax Division, have been referred to this office for reply. Since you are a “retailer maintaining a place of business in this State”, you would be required to collect the use tax when shipping gasoline from a point outside Illinois to a _ purchaser like American Airlines in Illinois for use. In gen- eral, you cannot be relieved of your responsibility for eol- lecting the use tax simply because the purchaser wishes to assume responsibility for paying the use tax directly to this Department. However, if the retailers’ occupation tax does not apply to the transaction so that the only tax involved is the use tax, there is an exemption provision in the Use Tax Act for tangible personal property that is acquired outside Illinois and stored here temporarily, but then used exclusively outside Illinois. Where the purchaser is the kind that could use the tangible personal property in more than one state (such as an interstate airline or an interstate railroad) and the property is the kind that could be used in more than one state (such as fuel), and where such purchaser acquires the property from you outside Illinois under such circumstances that no tax but the use tax could be involved in the transaction, you will be relieved __ from collecting the use tax from the purchaser if the pur- chaser certifies to you that the tangible personal property covered by the purchase order is to be stored temporarily in Illinois and then used outside Dlinois. If the purchaser thereafter should happen to change its intention in this respect and use some of such tangible personal property in Illinois, the purchaser will be expected to pay the use tax thereon directly to this Department. In the type of case just described, you should retain the exemption certificate in question from the purchaser among your books and records in case of an audit by the Department. Very truly yours, Richard J. Lyons, Director of Revenue By: Willard Ice, Supervisor Rules and Regulations Division WI:mh ec. American Airlines 1063] Exhibit D STATE OF ILLINOIS DEPARTMENT OF REVENUE Springfield Theodore J. Isaacs Director Albert R. Imle Assistant Director BULLETIN Rz: Temporary Storage of Motor Fuel Under Provisions of the Use Tax Act The purpose of this bulletin is to clarify the Depart- ment’s position concerning the temporary storage provi- sions of the Use Tax Act and their relationship to fuel consumed by a common carrier. The Department’s position is that temporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed inté the tank of the airplane, railroad engine or truck. At this point, the fuel is converted into its ultimate use, and, therefore, a taxable use occurs in Illinois. If a common carrier does not have separate facilities for transferring the fuel out of the State of Illinois but always puts it into the tank of the airplane, railroad engine or truck for final consumption, then they no longer will be able to give a certificate to the vendor stating that the fuel is purchased within the temporary storage provisions of the Use Tax Act, but must pay the use tax to their supplier. Txreopore J. Isaacs Theodore J. Isaacs Director of Revenue Issued: June 3, 1963 [065] Starz or Inuuxows Counry or Coox IN THE CIRCUIT COURT OF COOK COUNTY Revenue | 63017049 MOTION FOR TEMPORARY INJUNCTION Now comes United Air Lines, Inc., plaintiff, by its attor- neys, and moves this Court to enter an order for tempo- rary injunction in accordance with paragraph I of the Prayer of plaintiff’s Amended Complaint in Chancery, said temporary injunction to be limited, however, to the follow- ing terms: That defendant Theodore J. Isaacs, as Director of ‘ Revenue of the Department of Revenue of the State of Illinois, his representatives and successors in office, de, and they and each of them are hereby restrained, ns until further order of this Court, from in any way, directly or indirectly, imposing, assessing (including making any determination, [066] final or otherwise, of a claim for credit or refund pertaining to the use of fuel within the scope of this litigation and filed by plaintiff either (i) to recover use tax paid by plaintiff under protest or (ii) for use tax paid by plaintiff not under protest) or collecting or attempting to impose, assess or collect a use tax upon any fuel which, after being purchased by plaintiff outside Illinois and stored in Illinois, is loaded by plaintiff in Illinois aboard air- craft to be used and consumed in propelling said air- craft in interstate or foreign commerce, irrespective of whether such fuel actually is burried off within or out- side the borders of Illinois. UNITED AIR LINES, INC. Plaintiff By Manx H. Berens Mark H. Berens Wm. Bruce Horr, Jz. Wm. Bruce Hoff, Jr. Its Attorneys Of Counsel: MAYER, FRIEDLICH, SPIESS, TIERNEY, BROWN & PLATT 231 South LaSalle Street Chicago 4, Illinois STate 2-0600 [068] [Caption Omitted] ORDER FOR TEMPORARY INJUNCTION This cause coming on to be heard on the motion of United Air Lines, Inc., plaintiff, by its attorneys, for a temporary injunction under the general Chancery jurisdiction of this Court, IT IS ORDERED that defendant Theodore J. Isaacs, as Director of Revenue of the Department of Revenue of the State of Illinois, his representatives and successors in office, be, and they and each of them are hereby restrained, until further order of this Court, from in any way, directly or indirectly, imposing, assessing (including making any deter- _ mination, final or otherwise, of a claim for credit or refund pertaining to the use of fuel within the scope of this litiga- tion and filed by plaintiff either (i) to recover use tax paid by plaintiff under protest or (ii) for use tax paid by plain- tiff not under protest) or collecting or attempting to impose, assess or collect a use tax upon any fuel which, after being [069] purchased by plaintiff outside Illinois and stored in Illinois, was loaded prior to June 3, 1963, by plaintiff in Illinois, aboard aircraft to be used and consumed in pro- pelling said aircraft in interstate or foreign commerce, irrespective of whether such fuel actually was burned off within or outside the borders of Illinois. IT IS FURTHER ORDERED that the manner and ex- tent to which plaintiff shall furnish indemnification covering said temporary injunction shall be determined and agreed upon between the attorneys for plaintiff and the attorneys for defendant. IT IS FURTHER ORDERED that plaintiff’s motion for an injunction under the general Chancery jurisdiction of this Court is denied as to the period between June 3, 1963 and August 1, 1963. IT IS FURTHER ORDERED that plaintiff’s motion for an injunction under the general Chancery jurisdiction of this Court is denied as to all periods subsequent to August 1, 1963. DATED: December 13th, 1963. William V. Brothers Judge [071] [Caption Omitted] ANSWER Now comes Suztx On, Company, a Delaware corporation, one of the defendants herein, by Peterson, Lowry, Ratu, Bann & Ross, its attorneys, and for its Answer states as follows: 4 27 2, 3, 4, 4A, 14A, 22 and 23, Defendant admits the matters and allegations contained in paragraphs 2, 3, 4, 4A, 14A, 22 and 23. Further answering, defendant states that as to the re- maining allegations and matters contained in all other paragraphs, it is without information or facts sufficient to form an opinion or belief. Wuenzrone, Suett On, Company, a corporation, one of the defendants herein, prays that the plaintiff’s complaint should be dismissed as against the defendant, Suzi, On Company. PETERSON, LOWRY, RALL, BARBER & ROSS By: Owen Rati Attorneys for Defendant PETERSON, LOWRY, RALL, BARBER & ROSS 135 South LaSalle Street Chicago 3, Illinois ANdover 3-7300 [072] [Certificate of Service Omitted in Printing] [074] [Caption Omitted] ANSWE Now come the defendants, L. Hulman, Successor Director of the Department of Revenue of the State of Illinois, and William G. Clark, Attorney General of the State of Illinois, by William G. Clark, Attorney General of the State of Illinois, their attorney, and for their joint answer to the complaint amended herein, they and each of them say: 28 1. Admit the allegations of fact of Paragraphs one, two, three and four of plaintiff's complaint as amended; 2. Deny the allegation of Paragraph five and assert that plaintiff’s complaint represents an improper attempt as a class action and wrongfully assumes a common interest in questions of law and fact necessary in such actions; 3. Deny the allegations of Paragraph six of said com- plaint and state that plaintiff has waived any right or privi- lege to. [075] proceed under the Owens-Illinois Glass Com- pany, vs. McGibbin, decision by pursuing the remedies pro- vided under Illinois Revised Statutes, 1961, Ch. 127, Secs. 172, 172(a); 4. Admit the allegation of Paragraph seven of said Complaint ; 5. That they have no knowledge sufficient to form a belief as to the truth or correctness of the allegations contained in Paragraphs eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen and twenty of said complaint and therefore neither admit nor deny but demand strict proof thereof; 6. Admit the existence of correspondence from time to time by employees of the Department of Revenue but deny the conclusions and opinions of plaintiff relating to such correspondence as alleged in Paragraph twenty-one of said complaint. If as plaintiff alleges the existence of a prior administrative policy or practice exempting such transac- tions, such policy or practice, if erroneous can not imure to the benefit of plaintiff. Defendants further deny that either of the exhibits attached to and made a part of the complaint support any such allegation of any ruling by the Director of Revenue with respect to the transactions in question ; 7. Deny that any interpretation of the transactions involved by the auditors of the Department of Reve- i nue has any binding effect on the issue raised in the com- plaint. Defendants further deny any official ruling exempt- ing the matter in controversy as alleged in Paragraph twenty-two of said complaint; [076] 8. That they have no knowledge sufficient to form a belief of the allegations contained in Paragraph twenty-three and neither admit nor deny, but demand strict proof thereof; 9. That they have no knowledge sufficient to form a belief as to the truth or correctness of the reliance placed by plaintiff on any matter relating to the Use Tax in ques- tion as alleged in Paragraph twenty-four and these defen- dants state that the remaining allegations of fact contained in said paragraph, which are descriptive of plaintiff's transactions, clearly disclose that the plaintiff is engaged in a taxable use and that said plaintiff has not paid to any of these defendants the tax provided by the Use Tax Act upon and with reference to the matters set forth in the said complaint, at the rate or the amount prescribed by said Statute; 10. Admit the issuance of the Bulletin as alleged in Paragraph twenty-five, and a copy of said Bulletin is at- tached hereto and made a part of this Answer; ‘ 11. Paragraph twenty-six states various conclusions that the defendants deny; 12. Paragraph twenty-seven states various conclusions of the pleader and the Bulletin issued on June 3, 1963, and the Use Tax Act, are the best source to determine what is asserted or attempted to be asserted as the same apply to plaintiff ; 13. Paragraphs twenty-seven, twenty-eight, twenty-nine, _ thirty, thirty-one, thirty-two, thirty-three, thirty-four and _ [077] thirty-five state various conclusions and opinions of 6 the plaintiff that these defendants deny, the same being legal conclusions of plaintiff; 14. Deny the allegations of Paragraphs thirty-six and thirty-seven, the same being legal conclusions and opinions of plaintiff. Defendants assert that within the meaning of the Use Tax Act, the Bulletin issued on June 3, 1963, clearly stated that “the purpose of this Bulletin is to clarify the Department’s position. . . . and said Bulletin did not in any manner alter or change existing law. Nor did said Bulletin recognize or admit that plaintiff was excluded or exempt from the operation of the Use Tax Act with refer- ence to the transactions set forth in the said complaint; 15. That notwithstanding the plaintiff’s assertion to the contrary, The Use Tax Act, as-amended, is in all respects valid and constitutional as are the regulations and Bulletins of the Department of Revenue as promulgated under that Act and as are the actions of the defendants which this suit seeks to enjoin. More particularly neither the Use Tax Act nor any regulation or Bulletin of the Department of Reve- nue, nor any action of the defendants in enforcing that Act violate the Use Tax Act or Article I, Section 1, Article II, Section 2 and 14, and Article IV, Section 13, of the Consti- tution of the State of Illinois. Nor does the Act, Regula- tions or Bulletins violate Article I, Section 8 or 10, or the 14th Amendment to the Constitution of the United States; 16. That plaintiff has a full and adequate remedy at law for the determination of its tax liability under the Use Tax Act, [078] 1961 Illinois Revised Statutes,’ Ch. 120, Pars. 439.1 to 439.22, such legal remedy and the procedure to be followed having been specifically provided for by and con- tained within, the terms and provisions of said aforemen- tioned Act. Plaintiff. also has a full and complete statutory remedy provided in Section 2(a) of “An Act in relation to the payment and disposition of monies received for and 31 on behalf of the State“, approved June 9, 1911, as amended by Act approved May 15, 1961, 1961 Illinois Revised Statutes, Ch. 127, Sec. 172; 17. That plaintiff’s complaint is insubstantial and insuf- ficient and fails to state a cause of action to permit a Court of Equity to take jurisdiction; 18. The construction of the Use Tax which results in the imposition of the Use Tax on plaintiff’s transactions described in the complaint filed herein is a proper construc- tion and interpretation of said Act. 4 _ Wuenrerorr, the defendants pray that plaintiff's com- plaint be dismissed for want of equity, the injunction here- tofore entered be dissolved and vacated, judgment be entered in favor of defendants, and that these defendants may have such other and further relief in the — as shall be just and equitable. HARRY L. HULMAN, Director of Revenue of the Department of Revenue of the State of Illinois by: Wu G. CLanRk William G. Clark, Attorney General of the State of Illinois Attorney for the defendants [Jurat Omitted in Printing] 32. {080} State of Illinois bares DEPARTMENT OF REVENUE Springfield Theodore J. Isaacs Director Albert R. Imle Assistant Director RE: TEMPORARY STORAGE OF MOTOR FUEL _ UNDER PROVISIONS OF THE USE TAX ACT “The purpose of this bulletin is to clarify the Department’ position: concerning the temporary storage provisions of the Use Tax Act and their relationship to fuel consumed 191 a common carrier. The Department's position is that temporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the air- plane, railroad engine or truck. At this point, the fuel is converted into its ultimate use, e 1 8 a taxable use occurs in Illinois. If a common carrier does not have 8 facilities for transferring the fuel out of the State of Illinois but always puts it into the tank of the airplane, railroad engine or truck for final consumption, then they no longer will be able to give a certificate to the vendor stating that the fuel is purchased within the temporary storage provisions of the Use Tax Act, but must pay the use tax to their supplier. Treopore J. Isaacs Theodore J. Isaacs Director of Revenue Issued: June 3, 1963 33 {Caption omitted] STIPULATION It is hereby stipulated and agreed between United Air Lines, Inc., plaintiff, and Marshall Korshak, Director of Revenue of the Department of Revenue of the State of Illinois, William G. Clark, Attorney General of the State of Illinois, and Shell Oil Company, defendants, that: 1. United Air Lines, Inc. (“United”) is a Delaware cor- poration qualified to do business in the State of Illinois, and is engaged in the business of transporting persons, property and United States Mail by air on scheduled and chartered flights in interstate and foreign commerce.’ Until its merger into United on June 1, 1961, Capital Airlines, Inc. (“Cap- ital“) was also a Delaware corporation qualified to do busi- ness in the State of Illinois, and was engaged in the business of transporting persons, property and United States mail by air on scheduled and chartered flights in interstate com- merce.” 2. All such scheduled and chartered flights are made pursuant to Certificates of Public Convenience and Neces- sity, conferring authority to fly particular routes and issued to United by the Civil Aeronautics Board, and pursuant to Operating Certificates and Operations Specifications pre- scribing the manner in which aircraft are to be flown over those routes and issued to United by the Federal Aviation Agency. All such Certificates and Specifications are issued under authority of the Federal Aviation Act of 1958, as - amended (49 U.S.C. §§ 1301 et seq.). 1 United also provides scheduled intrastate service within various states, including, in Illinois, a limited number of flights between Chicago and Quad-Cities Airport, Moline. United has also per- formed a few charter flights between points within Illinois. United, - however, pays Illinois Use Tax on fuel consumed on such intrastate - flights (see footnote 6, below), and this lawsuit therefore involves e no intrastate "Capital provided no intrastate service in Illinois, 1098] 34 United’s scheduled service, is presently provided over a route system extending, via numerous intermediate points from the East to the West coasts and Hawaii, north and south along both the Atlantic and Pacific seaboards and, generally, north and south from the Middle Atlantic and New England states to the Gulf of Mexico.“ This route system consists of 17,420 unduplicated route miles, of which only 256 route miles, or less than 1.6% are within Illinois. It includes service on interstate and foreign flights to 110 cities in 32 states, the District of Columbia na United presently provides scheduled interstate service from O’Hare and Midway airports in Chicago to 55 cities in 20 states and the District of Columbia. Such service involves an average of approximately 4,580 departing flights per month, more than half of which are continuations of interstate flights that both begin and end outside Mlinois and on which Chicago is a stopover point. United also performs an average of approximately 21 monthly charter flights in interstate and foreign commerce between Chicago and various points in the United States and Canada.“ eee showing United’s principal certificated routes is atttached to United's Amended Complaint as Exhibit A. A de- “The information and average figures given in this paragraph „n Appendix: $ are dend on ee ee Average figures for prior years 35 3. Because United’s operations are under Federal au- thorization of the Certificates of Public Convenience and ‘Necessity, Operating Certificate and Operations Specifica- tions referred to in Paragraph 2, United’s interstate and foreign operations are regulated and controlled by various agencies and instrumentalities of the Federal government. Among other things: Dnited's tariffs (fares, rates and terms and conditions of carriage) are filed with and subject to the approval of the Civil Aeronautics Board. 5 Under the Federal Aviation Act, United is required to provide regularly scheduled service over all portions of its route system unless specifically authorized to suspend such __ service by the Civil Aeronautics Board, and is required to _ file all its schedules with the Civil Aeronautics Board and the United States Post Office Department. (14 Code of Fed- eral Regulations, Part 231 (1964).) - _ Under the Federal Aviation Act (49 U.S.C. § 1375), the Post Office Department has extensive authority to require airlines, such as United, to affirmatively establish schedules which meet the needs of the Post Office Department; con- . versely, the Post Office Department has a veto power over proposed schedule changes which would adversely affect its postal operations. Approximately 99.5% of United’s flights from O’Hare and Midway Airports are operated according to such schedules. _ Scheduled air carriers, such as United, are required to perform their established schedules, unless good cause, such as weather conditions or equipment difficulties, is shown. ~~ To that end, the Civil Aeronautics Board regularly monitors 3 the scheduled performance of all airlines, including United. ([ 4 C. F. R. Part 234 (1964).) Pursuant to the Federal Aviation Act, the Federal Avia- tion Agency has established a national air traffic control system whereby the actual routes between airports of all commercial aircraft ‘are fixed. Under such control, ‘no United aircraft may depart from O' Hare or Midway until its flight plan has been approved by the Federal Aviation Agency officer in charge, and the course and altitude of air- craft are assigned throughout all flights. Subject to certain exceptions near busy airports, the routings are on fixed courses which are much like aerial highways. Such routes; as they apply to a given route segment to be flown. and as assigned by the federal air traffic control authorities, must be followed by aircraft proceeding in ac- cordance with instrument flight rules promulgated by the Federal. Aviation Agency. To comply with its federally issued Operations Specifications (14 C.F.R. § 40.18 (1964)), United must conduct all of its turbojet flights in accordance with instrument flight rules (except in terminal areas when 4 radio contact with air traffic control) and, consequently, ong designated air space routes unless radar vectored estore by air traffic control, As a matter of policy, United conducts all of its flights ‘(tarbojet, turboprop and piston aircraft) enroute in accordance with instrument flight rules and along designated air space routes. While operat- ing under instrument flight rules aircraft are controlled as to routing, altitude and airspeed by the air traffic control function of the Federal Aviation Agency. Normally, flights to given destinations are assigned the same routings day after day.. Federal Aviation ‘Agency regulations (14 C. F. R. 50 42a, 52 1(1964)) require that all commercial aircraft, including those of United, carry a minimum specified amount of re- serve fuel over and above that required to carry the partic- ular aircraft to its scheduled destination. Such regulations | 37 also require, that, where it is uncertain if weather conditions at the scheduled destination will permit landing, additional Fuel necessary to take the aircraft from the scheduled destination to a specified alternate destination must be carried.“ (14 C.F.R. §§ 42a, 52 (1964).) - United must submit to the Federal Aviation Agency for its ratification Flight Manuals for each type of aircraft operated by it. Among other things, such Flight Manuals must specify: engine power settings for all phases of flight, - including run-up (for piston aircraft), take-off, climb and eruise; detailed fuel consumption data for all operating conditions, in terms of weather conditions, loaded weight of aircraft and engine power settings during all phases of flight; equipment and instrument check-out procedures; various additional take-off, landing and other flight pro- - cedures. 4. All of United’s flights are made with aircraft which were purchased or leased by, and delivered to, United out- ide Illinois and which include fuel storage tanks as integral parts thereof. These tanks are for the storage of fuel prior to the time it is pumped from such tanks through a system of fuel lines into the aircraft engines and there burned in - taxiing, take-off, and flight. 5. All of the fuel involved in this litigation is consumed in the interstate and foreign commerce described in the _ foregoing paragraphs.° Reserve fuel requirements and the manner in which basic fuel 8 1 are computed are described in paragraph 10 and ee Pc senenel be tenia ce well as on fuel consumed on intrastate flights in Illinois, including: (a) flights originating in Chicago and terminating at Moline; (b) WWW (0 charter flights between points within Ino 6. All such fuel (aviation gasoline for piston aircraft and kerosene for turboprop and jet aircraft) is purchased by United from Shell Oil Company, and is delivered to United, with possession, title and all risk of loss passing to United, either at Hammond, Indiana or at East Chicago, Indiana." 7. All such fuel is thereafter transported by pipeline or tank trucks, by common carriers under contract to United, normally on a daily basis, to ground fuel storage facilities located within Illinois, on or near O’Hare or Midway Air- ports in Chicago, where it is stored prior to being trans- ferred to the fuel storage tanks of aircraft. The period of storage in such ground fuel storage facilities ranges from a minimum of two days (during which period jet fuel is processed to eliminate impurities) to a maximum of twelve days. The average period of storage ranges, depending on the type of fuel and storage facilities involved, from two and a half to six days. 8. All such fuel is transferred from the b fuel storage facilities at O Hare and Midway Airports into the fuel storage tanks of aireraft either by fueling trucks or direetly through underground pipes and flexible hoses. Such transfers are made on an average of more than 150 times a day. With insignificant exceptions, all such transfers are made into the fuel storage tanks of aircraft immediately prior to departure, and the fuel so transferred remains in such fuel storage tanks in an unchanged condition until it is pumped through a system of fuel lines into the engines of the aircraft and there burned in taxiing, take-off, and flight. On stopover flights, unused fuel remains stored in the fuel tanks of the aircraft until aircraft is again flown.’ "7 Bush purchases end deliveries of fuel have been made under the game arrangement since May 1, 1953. ® Occasionally, fuel is removed from the aircraft and replaced in ground fuel storage facilities. In an extremely small number of in- stances, it may be dumped in flight. / 9. By virtue of the control and supervision of the Civil Aeronautics Board and Post Office Department as described in Paragraph 3, and as a matter of commercial, or “competi- tive,” necessity, United is required, weather and condition of equipment permitting, to perform all flights as sched- uled.“ United also is under contract to its passengers and cargo customers to perform all scheduled and chartered - flights. In order to perform these regulatory and contractual obligations, United is committed to transport fuel in its direraft to points outside Illinois. 10. As stated in Paragraph 3, Federal Aviation Agency regulations (14 C. F. R. 66 42a, 52 (1964)) require that cer- _ tain fuel load computation procedures be made for every commercial flight. Included in those regulations is the requirement that all commercial aircraft, including those of ~ United, carry a minimum specified amount of reserve fuel. In addition, and as a further safety factor, United's Flight Manuals, filed with and ratified by the Federal Aviation 8 N e 5 Agency, include requirements that all of its aircraft carry ~~ amounts of reserve fuel in excess of those required by Federal Aviation Agency regulation. Accordingly, after the United pilot and the dispatcher at the particular airport have taken into account all of the elements which might affect fuel consumption on a particular flight, such as weight of the aircraft as loaded and weather conditions along the assigned route, and, where weather conditions indicate that a landing at the intended destination may not de possible, have computed the amount of fuel necessary to take the particular aircraft to a specified alternate destina- tion, they must add the specified Federal Aviation Agency o During the first nine months of 1964, United performed roughly ö 99% of its scheduled departures from O Hare and Midway Airports. 10 Reserve fuel requirements for each type of aircraft operated by United are shown on the table attached to this Stipulation as Appendix 2. 40 and United Flight Manual reserve fuel requirement to the naan so calculated.“ 11. As a result of the fuel requirements and procedures described above, coupled with the rigid control of all. of United’s flight routes by the Federal Aviation Agency as outlined in paragraph 3: (a) approximately 99.75% of United’s incoming flights arrive at O’Hare and Midway Airports with fuel aboard equal to or exceeding the reserve requirements imposed directly by the Federal Aviation Agency regulations; (b) approximately 99% of United’s incoming flights arrive at O’Hare and Midway Airports with fuel aboard equal to or exceeding the combined reserve requirements imposed: by the Federal Aviation Agency regulations and by United’s Flight Manuals; (e) all of United's flights departing from O Hare and Midway Air- ports arrive at such airports with enough fuel on board to take them beyond the borders of Illinois on the actual route they follow.on the outbound leg of their journey; and (d) if the only fuel aboard arriving aircraft were the combined fuel reserve requirements of the Federal Aviation Agency and United’s Flight Manuals, 99.3% of United’s flights departing from O Hare and Midway Airports would have arrived with sufficient fuel aboard to take them beyond the a. e ee outbound leg of their journey. 2 )%%%ſ%ͤͤͤ% end 0 meet the amount specified by the pilot and dispatcher. If the pilot’s and the dispatcher’s requirements vary, eden rd dee Aren To illustrate the amount of additional fuel carried for alternative alternate destinations for four engine jet aircraft des- 4 132. As a further result of the Federal Aviation Agency regulations and United Flight Manual requirements described above, no United aircraft departs from O' Hare and Midway Airports without a minimum dispatch load of fuel on board.” 13. From the effective date of the Illinois Use Tax in 1955 through June 3, 1963, United paid the Illinois Use Tax upon the fuel loaded aboard aircraft in Illinois that was actually consumed (“burned-off”) in or over Illinois. In addition, since May 1, 1953, Shell Oil Company has collected from United the Indiana Gross Income Tax measured by the purchase price of such fuel paid by United to Shell Oil Company. Since June, 1963, the applicable rate of the Indiana Gross Income Tax has been % of 1 per cent. Apart from this, United incurs no State sales, use or similar tax on fuel loaded aboard aircraft in Illinois. 14. The parties have reviewed the documents, charts, Surveys, statistical computations and other data supporting ~~ the facts set forth in this Stipulation. Except as otherwise specifically indicated, it is understood that statements of present fact have been true continuously from January 1, 1960, and were true of Capital’s position and operations prior to its merger into United on June 1, 1961. It is further understood that Appendices 1 and 2 hereto, as well as Ex- _ hibits A and D to United’s Complaint, referred to herein, are part of this Stipulation.. 18 Minimum dispatch loads for each type of aircraft operated by United (in all cases more than twice that required to carry the air- craft beyond the Illinois border) are set forth in the table attached do this Stipulation as Appendix 2. 42 It is further stipulated and agreed that all of the parties hereto shall have the right to offer additional evidence on any matter relevant to the subject matter of this litigation. UNITED AIRLINES, IN W. 5s, Wu. Bruce Horr, In. MARSHALL KORSHAK, Di- rector of Revenue of the De- partment of Revenue of the State of Illinois /s/ Mus Korsnak WILLIAM d. CLARK, Attor- ney General of the State of Illinois 57s, Wu G. CLanx SHELL OIL COMPANY Peterson, Lowry, Rall, Barber & Ross /3/ Owen Rati + e 8 * Appendix 1 to Stipulation introduced in essentially iden- tical form as United Exhibit 5, Reproduced at page 230, 8 500 13, 350 14,550 27,900 4,200 000 18,350 15,350 33,700 5,600 a 2,700 8,100 400 000 4,000 12,000 18,000 23,600 28,600 52,200 8,700 000 4,000 12,000 26,000 ‘ | 25,400 34,100 59,500 8,400 000 4,000 12,000 26,000 y during the periods in which the information reflected ilable for only west „since eastbound a - er as no southbound signi * average shown in this column. applicable to both ai a ya ts would be columns was collected. However, the same basic igh Midwa operating conditions are 18 Precise burn-off no ts involve onl oan for all fl eparture routes from O’Hare or Midway. fl d 44 [Caption Omitted] 11461 ADDITIONAL STIPULATION ; It is hereby stipulated and agreed between United Air Lines, Inc., plaintiff, and Theodore A. Jones, Director of Revenue of the Department. of Revenue of the State of Illinois, William G. Clark, Attorney General of the State of Illinois, and Shell Oil Company, defendants, that: 1. From August, 1955 when the Use Tax Act was en- acted to June 3, 1963, the Department of Revenue uniformly and consistently interpreted and applied the Illinois Use Tax Act to fuel purchased outside Illinois by interstate air- .. lines and railroads, brought into the State and stored here by them prior to the use of such fuel by them in propelling aircraft and trains in interstate commerce so that only that portion of the fuel actually consumed (“burned off”) in or over Illinois was subjected to the Illinois Use Tax. 2. In reliance. upon the facts stated in paragraph 1, numerous railroads and airlines (that purchased fuel out- side the State of Illinois, caused it to be brought into Illi- nois and temporarily stored here before use in interstate movements of aircraft and trains) computed and paid Illi- nois Use Tax according to burn-off formulas. 3. Pursuant to this interpretation, United computed and paid its Illinois Use Tax on fuel loaded at Midway and ~ O'Hare Airports in Chicago from August 1955 to June 1963 on a burn-off basis. Payments of Illinois Use Tax on air- craft fuel on this burn-off basis for the period July 1, 1959 through December 31, 1962, were audited by the Depart- ment of Revenue and approved by it subject to minor com- > Whe facts herein stipulated are in addition to those set C e aes 1966. 4 It is further stipulated and agreed that all of the parties _ hereto shall have the right to offer additional evidence on any matter relevant to the subject matter of this litigation. UNITED AIR LINES, INC. By /s/ Marx H. Berens THEODORE A. JONES, Di- rector of Revenue of the De- partment of Revenue of the State of IIlinois By /s/ T oDOnR A. Jonze WILLIAM G. CLARK, Attor- ney General of the State of Illinois By /s/ Wu G. CLanx SHELL OIL COMPANY By Peterson, Lowry, Rar, Bana & Ross By /s/ Owzw Ratt 5 11490) ‘ te the » [Caption Omitted] Now comes SHELL OIL COMPANY, a Delaware Cor- poration, one of the defendants herein, by Peterson, Lowry, Rall, Barber & Ross, its attorneys, by leave of court first had ‘and obtained, and for its Amended Answer to the Amended Complaint: ee filed by United Air Lines, 18 atates as follows: 2, 8, 4, 4M, 14, 14A, 15, re and 23. Defendant admits ‘the matters and allegations contained in paragraphs 2, 3 4, 4A, 14, 14A, 15, 22 and 28. Further answering, defendant states that as to the re- maining allegations ons and matters contained in all other paragraphs, it is without information or facts sufficient to form an opinion or belief. WHEREFORE, SHELL Ou. COMPANY, a corpora- tion, one of the defendants herein, prays that the plaintiff’s complaint. should. be, dismissed as against the defendant, SHELL OIL COMPANY. » \ PETERSON, LOWRY, RALL, BARBER & ROSS By Owzn Rati Attorneys for Defendant PETERSON, LOWRY, RALL, BARBER & ROSS 135 South LaSalle Street Chicago, Illinois 60603 ANdover 3-7300, Attorneys for SHELL OIL COMPANY, Defendant 47 ö 11511 Caption Omitted] ORDER OF PERMANENT INJUNCTION |» This cause coming on to be heard on the motion of United | Air Lines, Ine, plaintiff, by its attorneys, the Court being advised by the Attorney General as the attorney for the defendant, Theodore A. Jones, Director of Revenue of the epartment of Revenue of the State of Illinois, that all Notices of Proposed Assessments, if any, relating to fuel ed into plaintiff’s aircraft in Illinois during the period ior to July 1, 1963, will be withdrawn and that the De- partment of Revenue has abandoned its claim with respect to stich fuel for said period, and the Court being r dvised by the attorneys for plaintiff that plaintiff wi _ withdraw its claim for credit (aggreg¢ting $49,020.15) for Ix IS ORDERED that Theadore A. Jones, Director of Revenue of the Department of Revenue of the State of Illinois, his representatives and successors in office, be, and _ they [152] and each of them are hereby permanently re- strained from in any way, directly or indirectly, imposing, " assessing or collecting or attempting to impose, assess or collect a use tax upon any fuel loaded into plaintiff's air- _ craft in Illinois during the period prior to July 1, 1963. “DATED: February 14, 1968 ‘ Thomas Donovan Judge \ * 48 11840 [Caption Omitted] „b Now ‘comes: Theodore A. Jones, Successor Director of Revenne of the Department of Revenue of the State of Illinois, and. WILLIAM d. CLARK, Attorney General of the State of Illinois, by WILLIAM d. CLARK, Attorney General of the State of Illinois, their attorney, and for their supplemental joint answer to the ene eee herein, they e den e. om corey ara og lm 144: ‘Admit that part of the allegations contained . ‘was the seller of the fuel during the period involved. Defendants deny the ee as conclusions of Plaintiff. : WILLIAM d. CLARK, Attorney General of the State of Illinois Attorney for the Defendants. [Jurat Omitted in Printing! = MR. BERENS: —to refresh e memory of the 49 REPORT OF PROCEEDINGS _ [2] MR. BERENS: We are ready for trial today, Your Honor, but before that, we’ve got a couple of preliminary matters. Here is an agreed order for permanent injunction on the so-called past period that is running from January I, 1960, through June 30, 1963. For your recollection, that is not in protest fund. = ~ THE COURT: I understand. MR. BERENS: The temporary injunction was against any assessment— ‘THE COURT: Pending the outcome of this litigation, there will be a fund available. MR. BERENS: Yes, for the so-called current period, - which is all that remains in the case after you have 5 13) signed that order and which is in the protest fund. MR. CAMPBELL: I would like to explain to the Court te basis for this order. The taxpayer raised in Paragraph _ 6 of their complaint, as amended, the question of the retro- active application of the bulletin, which was issued by the Director of Revenue on June 3, 1963. And in order to avoid that problem and because of the Pressed Steel Car ease, the Department has decided not to assert the tax elaim for the period prior to the date mentioned in the order and that is the reason for the order. So we have no objection to the entry of the order. THE COURT: All right. _ [5] MR. BERENS: As I stated a moment ago, Your Honor, United Air Lines is ready for trial. And if it please dme Court, I would like to make a brief opening statement THE COURT: Please do. MR. BERENS: eee eee iod out of the case. So the issue and the lia- bility, if any, for use tax in this matter starts July 1, 1963, and continues up to the present. We have before the Court as part of the relief requested a motion for permanent injunction against assessment for the present period and there is a protest fund injunction that has been issued by the Court. And the amount in con- troversy up to the eurrent date is in the protest fund with the State Treasurer. _ THE.COURT: Is this prior to July 1, 681 MR. BERENS: No, that commences as of July 1, 63, Your Honor. re — 9 * * [20] MR. HOFF: Exhibit No. 3 is the bulletin that has caused all the troubles here. June 3, 1963, bulletin signed by. Theodore J. Isaacs, Director of Revenne. 1 bed 12272 "WILLIAM LOUIS MOORE, JB. was called as a witness herein, having been first duly sworn, was examined and testified as follows: 4 DIRECT EXAMINATION BY MR. HOFF: Q. Would you state your name, please? A. William Louis Moore, Jr. THE COURT: M-o-o-r-e? THE WITNESS: M.-o-o-r-e, yes, sir. MR. HOFF: d. Where do you live, Mr. Moore! A. I ive at 350 Forest Road, Hinsdale, IIlinois. Q. And by whom are you en A. By United Air Lines. 0. Very briefly, Mr. Moore, would you outline the his- tory of your employment with United? ae} 7 51 A. I was employed in January, 1940. I worked for two years on the West Coast in the Reservations Department. I went into military service, January, 42; returned to United Air Lines in March of 46. Since that time, I have been in the Schedule Planning Department, and I am now Director [23] of Schedule Planning for United. Q. What are the responsibilities of the Schedule Plan- ning Department of United, Mr. Moore? A. To plan and coordinate them internally, all of United - schedules, systems schedules for passengers and cargo: Q. Does the responsibility of that department include arranging for technical facilities and aircraft? ‘ A. Not for technical facilities in aircraft. . I meant to say and aircraft. A. Indirectly, yes, we— Q. In what way, please? A. We are involved almost continually in the planning kor the numbers and types of equipment that United will order, the facilities that we will build at various airports. . All right. : MR. CAMPBELL: Your Honor, if I may just make a _ statement here, I don’t know what the witness intends to testify to, but certainly we stipulate that United Air Lines is an airline, and, of course, they have scheduled flights. 124] I don’t know if we can shorten the hearing in so far as the technical aspects or the operational aspects, but we are willihg to agree, of course, that they are an airline and that they do maintain schedules as well as, I suppose, un- scheduled flights. If this will facilitate the MR. HOFF: I think this witness is going to speak for much more than merely the fact that United is an airline and runs a schedule. I I was just giving his background quite briefly. _ THE COURT: Yes, background qualifying him for sub- sequent testimony. ny Rha 84 i 7 een I think the Court ‘could: even take judicial knowledge of the fact that United Air Linss is an airline. e IR HOFF: . Mr. Moore, I show you United Group Exhibit 4 for identifoation and ask you to ut what tha exhibit is. 61 A., Ahe is the Federal anthority issued by the. Civil Aes ee ee e bee eee ee ee ee convenience and necessity. It outlines the cities and the routes over which 125] United is permitted and required e ee ee ua. f e ee ee e ee eee eee eee TPhaintitfe Group Exhibit 4 for identification. ) “MR. HOFF: 2. Has United held these certificates au- thorizing it to fly essentially the same routes from 1963 on! A. Yes, it has. There are minor revisions as time goes on, but these are essentially the same. | Q. Does United provide any intrastate service in IIli- Pe . eee Dbicego and Moline. ) Tun COURT: That was in your certificate, wasn't it! MR. HOFF: ee eee aa MR. HOFF: tien be . sand. I would like to make the comment to the Court at this DRE eee Agee We: phy. the taxon the Chicago to Moline traffic, IHE COURT: I understand that’s in your original [26} stipulation, | MR. HOFF: And in the Aalen and btbor informa- tion that is to be presented here, all figures’ relating to Chieago-Moline have been broken out or are otherwise ex- plained in the exhibits themselves. 155255 I just wanted 8 make that — for the Court’s benefit. | THE COURT: ‘Very wel, Tartana 7 7 MR. HOFF: Q. Mr. Moore, I now show you United’s _ ‘Exhibit 5 for identification, and ask you what that docu- ment is. A. This is a geographic portrayal of the cities and 2 routes that United Air Lines is authorized to serve under 8 (The document above referred to was marked Mes Plaintiff’s Exhibit 5 for identification.) MR. HOFF: Q. How many cities does United cur- - rently serve, Mr. Moore? A. There are 105. 2. In serving the route system portrayed on that ex- hibit, how many takeoffs and landings does [27] United make per day? A. In December, we averaged 1,769 takeoffs and the ~ game number of landings each day. Q. Does that include any all-revenue producing flights? 4. That is only the revenue producing flights, the sched- led, the charter and extra section flights. 2. Mr. Moore, I now show you a document marked _ “United Exhibit 6 for identification,” and I ask you what that document is. A. This is our system timetable effective January 15, Which lists all the flights that we operate in the period -- shown here effective January 15, 1968. THE COURT: 681 IH WITNESS: Yes, sir. (The document above referred to was marked Plaintiff’s Exhibit 6 for identification.) # MR. HOFF: C. How long in the normal course will _ that schedule remain in effect, Mr. Moore! A. In the normal course, it would remain in [28] effect dome four to eight weeks. This happens to be effective for CAMPBELL: Vour Honor, we don’t intend to be Ba technical; but we would like to object to this line of ques- Homing as not having n bearing on the issues raised in the comiplatiit: » THE COURT: I don’t know that it has or not at this point, Mr. Campbell. Een n tins. If it has no bearing, you may renew it later. MR. HOFF: All right, I would like to offer these three —well, no. ee en ee Court please. Q. I now show you United Exhibit 7 for identification and ask you what—will you tell us what that document is? A. This'is a list of United airplanes. (The document above referred to was marked 112 Plaintiff's Exhibit 7 for identification.) MR. CAMPBELL: We would renew the same objection to this document, Your Honor. {29] THE COURT: The ruling will be the same. THE WITNESS: This is a list of our airplanes that we own and operated as of the Zist of December, 1967. It is broken down hereby jet, jet-prop, and piston; and it also shows the number in scheduled service, the support aircraft, and those which are grounded and waiting dis- MR. HOFF: Q. In other words, 295 aircraft during this period were actually— MR. CAMPBELL: We object to counsel commenting on the exhibit, Your Honor. . THE COURT: Objection will be sustained. ‘THE WITNESS: It shows 295 in scheduled service. MR. CAMPBELL: We object to the witness reading from it. _ THE COURT: Les, it speaks for iteclf. PP It may need some explanation. — MR. HOFF: Q. By “scheduled service,“ what is re- - ferred to? THE COURT: I don’t know what “aircraft” means 130] by United. I think I would like some enlightenment on it. Odjection will be overruled. MR. HOFF: Q. By “aircraft in scheduled service,“ Mr. Mere, what is intended by this heading on this exhibit? A. These are the airplanes actively used or assigned to scheduled operations as of that date. Q. And by “scheduled aircraft”— A. As opposed to support aircraft, which are those that are in training, in project work, in maintenance, assign- ment in overhaul, and the grounded aircraft are eleven Viscounts which had been withdrawn from service. They . are on the ground awaiting disposal. Qi. All right, Mr. Moore, in order to make the average of 1,769 takeoffs per day which you have just referred to, how many takeoffs per day must these 295 aircraft as- signed to scheduled service make? MR. CAMPBELL: Objection, Your Honor. Calls for a conclusion of the witness. 131] THE COURT: It is a mathematical process, I sup- pose, unless some make more than others. I don’t know. , Objection is overruled. May answer. THE WITNESS: Your Honor, you are right; some do make more than others. Some aircraft will make only one departure a day. We get as high on some airplanes as ~ fifteen. The average comes out to six, and, as a general rule, the most frequent number would be in the neighbor- hood of five to six to seven per day per aircraft. THE COURT: That is takeoffs and landings? . THE WITNESS: Takeoffs and landings, of course, would be the same number. Se ae SET ae a eee pects 8 RI * ag 4 5 “THE COURT: It happens to be the same. It just can’t stay up there. THE WITNESS: That's richt. f f R. HOFF: eee offer into evidence United’s Exhibits 4, 5, 6, and 7, which are the route certificates, the route map, the. United sched- tle, and Table No. 7, which lists the aircraft, and by way of explanation, I would like to state to the Court that these [32] exhibits constitute the basis upon which later evidence will he predicated, summaries. of statistical nature. | MR. CAMPBELL: Pam sane d e ex- hibits, Your Honor. IHE 7. Do you wish to have me withhold raling until you crose.examine on these! MR. CAMPBELL: Beg pardon? - THE COURT: You do wish to have the Court withhold its ruling until you have had a chance to cross examine on these? ‘MR. CAMPBELL: No, Mids Manin, we dd-nck? with. THE COUBT: They will be admitted. (Said documents, heretofore marked Plaintiff's Exhibits 4, 5, 6, and 7 for identification, were ad- «» Mitted in evidence.) 8 [33] MR. HOFF: . Moving now, if we may, Mr. Moore, from the general to the specific, and confining our- selves for the moment only to the operations of United Air Lines, could you tell us in a very general way how Chicago ſits into these operations out of O Hare, how Chicago fits into this general nation-wide pattern of operations that we have been discussing? Our operation at O Hare is the largest that we have in the system. We.enplane more passengers, we have more flights than anyplace else. It is the hub of our opera- tion, the focal point, as far as our connecting services, both on line and off line to—that is, connections from United to 4 57 Vnited, or connections’ between United and other carriers . What fact is responsible for this situation, Mr. Moore, fact or facts, if any? A. Well, first, Chicago is the center of a large metro- politan complex and there is a great amount of traffic destined to or enplaning in Chicago. [84] MR. CAMPBELL: We would object to the question, Your Honor. The witness was called upon te state a con- en an ta why Chicago happens to be the largest opera- tional center. WMWe think that this 1 0 for a conclusion. He is called ‘upon to interpret facts. THE COURT: Well, no. I think this witness is fairly qualified to answer the question. + Objection will be overruled. MR. HOFF: Q. Go ahead, Mr. Moore. A. In addition to ite—to the needs of Chicago, it is a - metropolitan complex by, you could call it, geographic cir- oeumstances. It represents a connegting point here in Chi- cago for that traffic which flows from one part of the zs 1 In Chicago, Unieed, in Partiel, has a large number . oath. de, coming Hho Chicago, let us say, from the East and connecting at Chicago to go to the West Coast, or vice versa, or to off-line points to the South. As a matter of fact, the connections at Chicago are so great that they really help support the over-all opera- tion of Chicago or to carry that one step [35] further, if _. the traffic at O’Hare was all and only that destined to and - from Chicago, we would have far fewer departures and _ arrivals at O Hare. The connecting traffic adds to the com- 2 So far, you have been talking about United, I take it? A. Yes, sir. Q. To what extent is the same thing true of other air- lines? If we might, if you would, please, let us talk about other trunk carriers like United, as opposed to local service carriers. MR CAMPBELL: Ahe knows: : MR. HOFF: If be knows, oh, yes. a why . THE WITNESS: United is the largest of the trunk car- riers, but the other trunks have similar situations as United bas. Some more with the off line, the terminal carriers, such as Braniff and Continental who terminate here, would have connecting complexes and connection passengers off line— . THE COURT: Excuse me. (Short interruption.) MR. HOFF: Q. The last question, I believe, [36] related to the extent to which the circumstances which we have been talking about affected the other trunk carriers. Had you completed your answer, Mr. Moore? I personally don’t A. I think so. - THE COURT: 1 hope e0:oni she record: MR. HOFF: Q. Well, now, how about the local service carriers? To what extent, if at all, are they in the same situation? : A. hey. are in much the same situation as the trunks, except that most of the local service operation terminates and originates in Chicago. And to that extent, they rely even more upon the connecting business at Chicago. Q. All right, Mr. Moore, I show you a document marked United Exhibit 8 for identification, and I will ask you to A. What we have here is the projection for the third quarter, 1967, of the category of passengers handled by United Air Lines at O’Hare on an average day. Q. Only one day, is that correct? A. This is an average per day, yes. [87] (The document above referred to was marked Plaintiff's Exhibit 8 for identification.) MR. HOFF: Q. Why has the third quarter of 1967 | been used, Mr. Moore? | A. This is the last quarter for which complete records are available. . Referring to part A of this exhibit, on what are the figures given in.that part of the exhibit based?. > A. The through-line passengers carried through Chi- eago are an actual count based on company records. The ~ sixth line, which are the total daily passenger volume in Chicago, is likewise based upon actual records. The breakdown of the originating passengers enplaned and the destination passengers deplaned is based upon a study completed about five years ago, and it incorporates the ratios which were derived at that time between origi- “nating passengers enplaned, passengers carried through, and passengers connecting between United flights, and pas- _ Bengers connecting between United and other [38] carriers. . And with respect to Part B of this exhibit, on what are those—upon what is that figure based? “iy © That is based upon an actual first quarter 67 record of the local Chicago-Moline passengers in intrastate serv- doe expanded by fifteen per cent, which is the normal ex- pansion we had systemwide between the first and third quarter of 67. = Q. Are the records to which you have just referred present in the courtroom! A. I have the basic records in my briefcase. I failed to bring them up with me. L. That's all right. A. They are part of the United station summary sta- MR. HOFF: Your e 1 will offer United Exhibit 8 for identification. ye - THE COURT: Have you seen itt MR. CAMPBELL: Same objection, Your Honor. IHE COURT: It will be admitted. ; [39] (Said document, heretofore marked Plaintiff's Exhibit 8 for-identification, was admitted in evi- dence.) {[40) MR. HOFF: Q. Excluding passenger growth to the extent that it has or might in the future exist, has the relationship between interstate and intrastate passengers handled by United been substantially the same from 1963 to date? A. Yes, sir. . . that rela- tionship would change in the future? MR. CAMPBELL: Object, Your Honor. THE COURT: Objection will be sustained. MR. HOFF: Well, it is not that important a point, Your Honor. But the man—well, let me put it this way: Q. Based on your experience in this business, Mr. Moore, do you have an opinion as to whether this relation- ship is likely to change in the future? MR. CAMPBELL: Same objection, Your Honor. We feel that the answer to this question is not relevant to the - THE. COURT: Well, I am wondering about that. MR. CAMPBELL: It relates to a future matter. THE COURT: It relates to intrastate. MR. HOFF: Of course, we want to show the heavy {41] interstate balance, the flow of traffic, and we think it is relevant. The State’s bulletin theoretically runs on and on into the future. Certainly this expert’s and I think he is an expert, 61 opinion as to what is likely to be the situation in the future is relevant, is admissible on that point. THE COURT: There is something in your stipulation about that. Well, I will let him answer the question. I will allow him to answer the question. I am being a little more liberal that way. You may an- swer the question. THE WITNESS: Third quarter ratio is about three- quarters of one per cent of the total United traffic United handles intrastate. I would expect that that ratio would stay essentially the same in the future. : MR. HOFF: Q. All right, on a nation-wide basis, Mr. 3 Moore, how many passengers did United handle on an average day during the third quarter of 1967? A. In the third quarter of 67, we enplaned an average of 72,000 passengers per day. 142] Q. Mr. Moore, how many takeoffs per day —oh, ex- cuse me. The average of 1, 769 takeoffs per day which United makes throughout the country, how many are made from Chicago? A. The present count is 244. Q. Is that more than in any other city in the country? A. It is more than any other city. It is about twice the number that we have at New York, twice the number at San Francisco, and twice the number at Los Angeles. Q. The figure you gave was 244. A. 234. I beg your pardon. J think that was right. iQ, Excuse me. 234. A. 234. Q. 234; of those 234 takeoffs per day from Chicago, how ‘many are on through flights, Mr. Moore? A. 171. Q. And of the remainder, how many are on short turn- arounds 7 A. I believe that number is 21. [43] Q. Will you tell us what I meant or what we mean by “short turn-around” ? A. A short turn-around is one in which the airplane arrives and in a relatively short period of time, generally in the one to two—up to three hours, and in certain excep- tional cases, up to about four hours, would turn around and proceed to another destination with a different flight number. 3 It is not designed to carry through traffic. It is designed to come in, unload the passengers, and go out relatively soon. Q. As opposed to a through flight which would have the same flight number, is that correct? A. Yes. Q. Mr. Moore, does United maintain records showing the average amount of time which its ai spend on the ground in Chicago between different leg of its through flights? A. We have records like that; yes, sir. Q. On the number of short turn-arounds, Mr. Moore, would you—you told us 21. Are you sure that is correct? [44] A. No, as a matter of fact, I think MR. CAMPBELL: Objection, Your Honor. This is an attempt here by the attorney to suggest answers to the witness. THE COURT: Read the question, please? (Question read.) MR. HOFF: He would like to correct that answer, —maybe I should say. THE WITNESS: The number is in the forties— THE COURT: Wait a minute. Well, go ahead, answer the question. THE WITNESS: I believe the number is 42. MR. HOFF: Q. Now, we were talking about an aver- age amount of time spent on the ground by through flights. I show you United Exhibit 9 for identification and ask you to tell us what exhibit shows. A. By aircraft type, this shows the number of through flights and the average time by each type, and the number of short turn-around flights, and the average time on the ground on short turn-arounds. Q. The average for through flights is what? [45] A. In passenger, it is 45.1 minutes; in cargo, it is one hour, forty-three, and over-all, 47. On the through flights and on the short turn-arounds, the average is just under two hours. (The document above referred to was marked Plaintiff’s Exhibit 9 for identification.) MR. CAMPBELL: Your Honor, we would object to the questions asked of the witness on Exhibit No. 9. We don’t feel that this has any bearing on the issues raised in the complaint whatsoever, about the amount of time spent on the ground of the planes. . THE COURT: Well, it may not.- I think the objection is very well taken on the ground that the exhibit speaks for itself. The objection will be sustained. MR. HOFF: Very well. Q. Mr. Moore, what is done to an aircraft when it is on the ground? Let us talk first about through flights. A. Ona through flight, the five major areas [46] of work would be, first, to dock the airplane; that is, to put it in the position at the gate to extend the jet-way out; off-load the passengers and cargo; service the airplane. That would include mechanical service as necessary, a review of the outside of the airplane, a check of the logbook : 5 in the cabin, a check of the oxygen supply, a quick run- through of the cabin—picking up any newspapers or maga- ) 5 zines that — have accumulated—straightening up of O4 the cabin and then the boarding of the fuel and the food, the passengers, cargo, and departure. Q. On a short turn-around, what, if anything, in addi- tion to the things you have just talked about is done? A. Primarily, on a short turn-around, the added work- load would involve the change ‘of ‘the lavoratory service, or an emptying of the tank; and on a more complete cleanup of the cabin area, and it can involve some minor mechanical work at the same time. Q. Mr. er bo hep this ground time on both through flight and [47] short turn- around flights as shown as possible? A. We do, particularly at O’Hare. Q. Why is it as long as it is, Mr. Moore? A. It is primarily to allow for the work involved that I just mentioned, plus the connecting times which are neces- sary to connect passengers and baggage in the connection . banks that we operate. MR. HOFF: Your Honor, I would like to offer United Exhibit No. 9; which shows these various ground times. MR. CAMPBELL: Same objection. THE COURT: Same objection, same ruling. Admitted. (Said document, heretofore marked Plaintiff’s Exhibit 9 for identification, was admitted in evi- dence.) f [48] MR. HOFF: Q. As a part of your duties in pre- paring United schedules, Mr. Moore, are you also con- cerned with the problem of the availability of aircraft at particular airports at e times? A. Yes, sir, we are. ; Q&- Tn gimeral, what fadtors do you ee eee ment of a particular aircraft to particular flights? A ‘The principal factors would be the range capability of the aircraft and the size of the market and the limita- tions on facilities that we might have in an airport, and the timing of connections, both on line and off line to facili- tate the—to expedite the flow of traffic through the O'Hare facility or any other terminal facility. Q. What is a routing chart, Mr. Moore? A. A routing chart is a listing in one form or another showing for each day for each fleet the turn-around and the routing of the entire fleet assigned to schedule. . Mr. Moore, I show you United Exhibit 10 for identi- fication and ask you to tell us what [49] that document is. A. This is an aircraft routing chart for our 28 727 QC aircraft as of the October 29, 1967, schedules. On the left, we show the cities generally geographically spaced and across the time increments from midnight over to midnight the following day. Each horizontal line on here, above which a number appears, shows the flight number of an airplane which has just arrived or is about ready to take off at the city in- volved, and it is drawn so as to depict the time of arrival or departure. The diagonal line connects the two cities together between which the flight operates. As an example, in the upper left- hand corner, there is a Flight 989, which shows leaving Seattle at approximately 0155 in the morning. It flies to San Francisco. That's SFO. Seattle is SEA. It arrives at San Francisco approximately 3:20 and is on the ground at San Francisco until 4:15, and then proceeds on down to Los Angeles, LAX, and so forth. . Yes. This is 28 planes for one day, is [50] that cor- rect? A. This is 28 airplanes for one day or in effect what one airplane does because we try to route them through the entire operation. What one airplane will do in a series of —series of 28 consecutive days. Q. Similar charts exist or are made up for all of the aircraft operated by United on a given day, is that correct? A. Yes, sir; yes, sir. (The document above referred to was marked Plaintiff’s Exhibit 10 for identification.) MR. HOFF: . What symbol stands for O’Hare on st) . ; A. O. are appears in about the center. It is “ORD.” It is outlined above and below with a red line. Q. Mr. Moore, I have studied this before I came here. I don’t attempt to have done this on the spot. But I notice that almost every one of these flights, if not every one, has been in or out of Chicago at least once on this. particular day—=([51] each one of these planes, I should say. And that some of them have been in and out of Chicago several times. In that respect, is this particular routing chart typical of United’s—the operation of other types of aircraft by United? A. Tes, this is generally typical and a little easier read THE COURT: This is easier to read? THE WITNESS: Than some. - (Laughter) THE COURT: I will wait until I see the others. . THE WITNESS: All the fleets that we operate touch Chicago, except for the Convair fleet, which is confined entirely to the West Coast and currently to the DC-861 fleet, which is quite small and confined to Honolulu-Cali- fornia operations. All the rest do operate through Chicago. MR. HOFF: Your Honor, I would like to offer United Exhibit 10 for identification in evidence. MR. CAMPBELL: Same objection, Your Honor. THE COURT: It will be admitted. 152 (Said document, heretofore marked Plaintiff's Exhibit 10 for identification, was admitted in evi- dence. ). 67 [56] Q. First of all, Mr. Moore—let’s have the first slide. I think we have covered this question. J . Mr. Moore, will you tell us what—this is United Exhibit 11 for identification, by the way. [57] Will you tell us what that exhibit shows? A. This is a geographic portrayal of all the cities that United Air Lines is certificated to serve. (The document above referred to was marked Plaintiff’s Exhibit 11 for identification.) MR. HOFF: Q. And the next one, please? This is United Exhibit 12 for identification. Will you tell us what that shows, Mr. Moore? A. This is the same basic format of the cities which have red circles around the dots and are those to which—to which through service is offered between Chicago and each of those cities. (The document above referred to was marked Plaintiff’s Exhibit 12 for identification.) MR HOFF: Q. And the next one. This is United Ex- hibit No. 13 for identification. What does this map show? A. This shows the lines—shows the segments and they connect the points between Chicago and the other cities here to which nonstop service is [58] provided. 5 (The document above referred to was marked Plaintiff’s Exhibit 13 for identification.) MR. HOFF: Q. Mr. Moore, in what way, if at all, does United arrange its service to handle the volume of connect- ing traffic through Chicago which you described earlier? A. We intentionally time our flights to provide what we term a connection bank. Several times during the day, we bring a large number of airplanes in, let us say, from the East and connecting at Chicago to go west. Our routes are predominantly east-west of Chicago. We also connect off line to and from the trunk earriers and the local service carriers. 68 All right, now can we have the next one? This is United Exhibit 14 for identification. Mr. Moore, would you tell us what this exhibit shows? 55 A. The block in the middle marked O' Hare“ separates the destinations—let’s say the cities east of Chicago and those west on United’s route. [59] This is what we call our 1300, or 1:00 bank of flights. ‘Those flights shown on the right, the blue lines here, represent the number of flights and where they come from. It is a litle difficult to read, but that, I believe, is South Bend (indicating), this is Fort Wayne (indicating), that’s Cleveland, and so forth. These flights come into Chicago. Some will go through. All will connect to the outbound flights going to the West to Minneapolis, St. Paul; I believe that’s Milwaukee (indicat- ing), Seattle, Portland (indicating), and so forth. Each line represents one flight. - Q. The connections are possible from every incoming flight to every outgoing flight in this particular bank? A. Yes, that’s right. iss (The document: above referred to was marked : Plaintiff’s Exhibit 14 for identification.) THE COURT : What is the 5 e of the double line to Los Angeles? | THE WITNESS: We 3 to have, Your Honor, {60] so much traffic that one airplane will not carry it; so in that bank, we have two flights. THE COURT: Like the old “Twentieth Century” ee to carry two trains - b e tar ianaae Yes. Some day, we hope to get a larger MR. HOFF: Qs This is what you call you 1300 bank? A. Yes. Q. There are seis aie eatin the day? A. Yes, there are several other W during the ony both eastbound and westbound. 69 . All right, can we see the next one, which is United Exhibit 15 for identification? Does this relate to the same connecting bank, Mr. Moore? A. It does. It is the same bank; in blue again are the United flights in and out, and in the darker color are the other trunk flights outbound from Chicago. 1 For example, there is a flicht to Great Falls and Billings, there is another flight to Minneapolis-St. Paul, there are two other flights to Los Angeles, there are two flights to 161] San Frantisco, and so forth. 2. Again, are connections possible from all of the incom- ing flights shown on that map to all of the outgoing flights? A. Yes, these are only those to which connections are made within one hour time. * J. One of your westbound flights seems to swing back south and east, Mr. Moore. A. Well— Q. What is the explanation for that? A. That is shown—that is down to Atlanta and into the Florida area, and that is shown because there is some traffic that backhauls, or, let us say, goes slightly west first in order to go south. For example, from Flint and Saginaw up in Michigan, from Lansing to Muskegon, from South Bend to Fort Wayne, there is traffic that flows into Chicago-O’Hare and then connects to Atlanta, Jacksonville, and Miami. . For that traffic, Chicago happens to be the most con- venient connecting point, is that correct? A. That's right, that’s right. [62] (The document above referred to was marked Plaintiff’s Exhibit 15 for identification.) MR. HOFF: O. Now, can we see the next one? Now, Q. Tell us what this one shows. 70 A. It is the 1:00 p.m. bank and here again we have shown only United flights coming in, going out. We show here, in addition to United in blue and the trunk carriers in the darker color, we depict here in red connections to the local service carriers at O’Hare. Again, all the flights coming in will connect to all these going out. (The document above referred to was marked Plaintiff’s Exhibit 16 for identification.) MR. HOFF: Q. Next one, and this one is? A. This is somewhat the reverse of the second one of this type (indicating). This shows only United outgoing, but it shows the blue lines of United incoming to Chitage and in the darker lines, [63] the trunk carriers in addition to United between passengers in and cargo in for connection. Here again, all the inbound flights connect all outbound flights. (The document above referred to was marked Plaintiff’s Exhibit 17 for identification.) MR. HOFF: Q. All right. A. This one tends to include the local service carriers coming into the O’Hare 1:00 p.m. westbound bank showing United in blue, other trunks dark, local service in the red color connecting only to the United flights west. (The document above referred to was marked Plaintiff’s Exhibit 18 for identification.) MR. HOFF: Q. Now, this series of five exhibits, or five slides, if I understand it correctly, shows only connections which are possibly either from or to United in this. partic- ular connecting ‘bank, is that correct? A. That’s correct. Q. Or other combinations of connections [64] possible! A. Oh, yes. The carrier—or a passenger could come in on another trunk carrier to O’Hare at essentially the same time of day and connect with one of the local service car- riers on another trunk. 71 MR. HOFF: All right, Your Honor Q. Well, one more thing, Mr. Moore. I now show you United Exhibit No. 19 for identification and I ask you if you would please state— MR. CAMPBELL: Your Honor, pardon me. I don't know whether you have ruled. I object to this. MR. HOFF: I am going to offer copies of all these ex- hibits, including the one that I am now ‘showing him. (The document above referred to was marked Plaintiff's Exhibit 19 for identification.) * * „ [66] Q. Mr. Moore, you have before you now United Exhibit 19 for identification; would you tell us what that is? A. We had talked about connecting banks. What this does is list the five major eastbound banks and five major westbound banks. (The document above referred to was marked Plaintiff's Exhibit 19 for identification.) MR. HOFF: I didn’t give you one of these. I’m sorry. (Addressing Mr. Campbell.) f THE WITNESS: In the right-hand column is a calcula- tion of the number of cross connection possibilities. These are from one flight to another flight, the number of con- necting possibilities available to the traveling public in each of these ten different banks. MR. HOFF: Well, if the Court please, I would [67] like _ to offer at this time, and I understand that you are reserv- ing ruling on the photographs which correspond to the _ tlides, I would like at this time to offer United Exhibit— formally offer United Exhibits 11 through 19 for identifica- tion. They are all connected to this connecting bank. MR. CAMPBELL: We renew the objection as just stated. 72 THE COURT: For whatever bearing it may have on the third point. this is a violation of the Federal Con- stitution of the Commerce Clause . . it may have some bearing on it. I don’t know. But again perhaps for whatever bearing it may have, I am going#to admit them in evidence. (Said documents, heretofore marked Plaintiff’s Exhibit 11 through 19 for identification, were ad- . mitted in evidence.) [68] MR. HOFF: We will sort these out, Your Honor, and distribute copies of them. THE COURT: All right. MR. HOFF: Q. Mr. Moore, in setting up these con- necting banks, does United cooperate with other airlines? A. We cooperate very closely in setting up of the banks and in setting down the connections themselves. The whole industry has to maintain a very interdependent attitude here. ' Q. In that respect, are the schedules of other airlines and in particular of the local service airlines dependent on United’s schedules? A. Yes, sir. . And quite apart from the convenience of the con- necting—these connecting banks and making connections, to what extent are other airlines, whether trunk or local service, dependent on United? A. I think we are all interdependent upon each other whether we have connection banks or individual flights which connect. _ In order to expedite the flow of traffic through O Hare Airport and to utilize the facility [69] as efficiently as possible, it is incumbent upon the entire industry—United and all the other carriers—to work together, and we depend upon, to a certain extent, upon their timing, and they depend to an even greater extent upon our timing. 73 Q. Are United’s own operations in other parts of the country dependent on or controlled by its operations in Chicago? A. They are. Chicago is the keystone in the—in our arch of planning. Q. Could you give us a few examples of what you mean? A. The timing is one example, the timing across the Los Angeles-San Diego segment to the extent that it relies or is part of a Chicago-Los Angeles-San Diego through service would be dependent upon the time of the connection back at Chicago. Another example is the specific example, we have a flight at 5:00 p.m. out of Chicago to Denver— MR. CAMPBELL: Your Honor, we will stipulate that other airlines are dependent upon United Air [70] Lines. MR. HOFF: I think he is almost through with his answer. Maybe he was— THE COURT: Naturally, I would like to hear about this one about Denver. THE WITNESS: We have a flight at 5:00 p.m. from Chicago to Denver, which proceeds on through to Reno and Sacramento, and provides through service to those points, and it provides Chicago-Denver service at 5:00 p.m. THE COURT: Off the record. (Discussion had off record.) THE COURT: We will take a short recess. (Short recess.) THE COURT: You may proceed. MR. HOFF: Q. Mr. Moore, are all of United’s flights which pass through Chicago fueled while they are in Chi- oago « A. Practically all would be fueled here. 2. When does fuel—in the case of through flights—when does fueling take place? A. Well, there is very little time for slack on either side. og Fueling takes place shortly after [71] arrival and shortly 74 before departure. As a rule, it depends upon when the fuelers and the equipment is available, but usually it is. just shortly before takeoff. . And on short turn-arounds, when is the oe per- mitted? A. Essentially the same. Q. Mr. Moore, as far as the basic operational facts to which you have testified are concerned, do you foresee any change in the pattern and volume of United’s operations in the future? A. Only growth. MR. HOFF: That is all for this witness, Your Honor. THE COURT: Cross examination? 1751 JOHN G. AR TUS was called as a witness herein, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. HOFF: Q. Will you state your name, please? A. My name is John G. Artus. THE COURT: Spell your last name. THE WITNESS: A-r-t-u-s. MR. HOFF: Q. And your business, Mr. Artus? Do you have a title? A. I am a flight manager and check pilot for United Air Lines. Tou are referred to as “Captain,” I think. Tes. Where do you live, Captain Artus! I live at 820 Country Drive, Barrington. By whom are you employed? Q. And your present title again! A. Flight manager. Q. As flight manager, Captain Artus, what are your responsibilities ? [76] A. Well, I have sixty some Pilots assigned to me, and I have direct supervision over them to check them periodically as to their proficiency and see to their route qualifications and generally supervise their entire activity. Do you fly? A. Les. Q. As flight manager, do you ff! A. Tes, I do. Q. To what extent? A. Well, I am at the controls myself approximately 25 “hours a month and fty to sixty hours a month, I am in “the cockpit as check pilot. . How long have you been a fligit manager for United? A. About a year and a half. Prior to that, how long had yu been a pilot? A. Well, I started flying in 1939, . Will you briefly tell us the history of your career as à pilot? A Ves. I started flying in 1939 and when my experi- ene level was at the point that I eculd [77] apply with an airline, I applied for a job as first ofioer, or a co-pilot, with 5 Pennsylvania Central Airlines, which later became known as Capitol Airlines and subsequent y Merged with United 2 Air Lines in 1961. Tour present fiying is out of td back into O Hare, is correct? : 4. That's correct. = 0 Prior to that, have you als? flown in and out of 8 O Hare! . Yes, Ihave flown in nd out € O'Hare as long asi been in existenee. 76 Q. Were you 8 have been stationed at Chi. cago, so to speak, for how long? A. Four and a half years. Q. Captain Artus, are you familiar with the air traffic control function of the Federal Aviation Agency? A Yes, I am, Q. Would you describe that function, please? A. Well, the air traffic control system MR. CAMPBELL: We object, Your Honor, to this line of conversation as to thet s assume that the 1781 F. AA. Federal Aviation— 3 THE WITNESS: 8 L791 MR. HOFF: Q. Go ahead, Captain Artus. A. Well, the air route traffic control system is a depart- ment of the Federal Aviation Agency and its prime respon- sibility is the separation of aircraft operating on a time flight rule condition. And to do this, their basic working tool is a system [80) of radar, in which aircraft are identi- fied and tracked by a controller at a radarscope much like a TV sereen. And he follows the blip across this screen. And as a result, he knows absolutely where the aircraft is and what route it is traversing. © 6 Would you describe how this works in the case of a particular flight beginning at the point of takeoff and carry- ing it through to the borders of Illinois? 3 A. Well, every flight that departs O’Hare on an instru- ment flight rule clearance files a flight plan for the particular route, and these routes are laid down, as you might say, highways in the sky. They are specified routes that are eight miles wide that we have to follow. Wikia fight Gepard Bid i 10 véstored or given a heading to one of these routes that he would select? To do this, he is given a heading to fly, after takeoff at O Hare, and if I could use the case of a westbound flight, taking off 77 on Runway 27, which is heading 270 degrees heading to the west, the controller will tell him [81] to maintain a heading of 270 degrees after takeoff. From that point, he changes his radio frequency to what we call departure control and this is the first man in this radar network that handles him, and he is located right at O Hare Field. And he continues him on these vectors until he gets to his specified airway. He is “at and off,” as we say to the air route controller by the time—by the time that he is fifteen or twenty miles west of O’Hare, and then this . function is taken over by the air route traffic controller who is located in Aurora, Illinois, and he continues him from that point. Q. You mentioned instrument flight rules. Are all _ United’s flights flown under instrument flight rules? A. Yes, it is under policy to fly all flights on instrument fight rule condition, and as a result, we are under the posi- tive control of these radar operators. Buy means of this system, are aircraft assigned to particular departure routes as they depart from O’Hare Field? 182] A. Yes, they are. Fon referred to flight plans, Captain Artus. Would Jou tell us what a flight plan is, and would yon tell us if there is more than one type, and would you describe them, Please? A. Well, a flight plan is information needed and required by the air traffic control system, and it has to be filed prior to departure; so that the aircraft can be given a clearance and in a flight plan is specified the route of flight, the alti- _ tude to be flown, the true air speed, the time of the flight, and various other information items that pertain to tech- nical equipment on the airplane. 78 Q. Is it always ee Let me interrupt for just this one question. A. el there could be some delays incurred in being able to allow this flight on this airway at that particular time because of conflicting traffic. All right. Is there any difference between short range and long range flights as far {83] as flight plans are concerned? . A. Well; short range flights are what we consider any- thing under 1,200 nautical miles and we have—now we have a system which we call Center Stored Flight Plan. These pertain to flights that operate day in and day out the same flight nu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0115%3A01. Public record. Not legal advice.