Davis, William J.

English

Southern Methodist University

SMU Law ReviewVolume 7 | Issue 2 Article 81953State Regulation of Aeronautics in the SouthwestWilliam J. DavisFollow this and additional works at: https://scholar.smu.edu/smulrThis Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Reviewby an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu.Recommended CitationWilliam J. Davis, State Regulation of Aeronautics in the Southwest, 7 Sw L.J. 293 (1953)https://scholar.smu.edu/smulr/vol7/iss2/8NOTES AND COMMENTSSTATE REGULATION OF AERONAUTICSIN THE SOUTHWESTT HE broad regulatory powers contained in the Federal CivilAeronautics Act' have caused the states to proceed with cautionwhen drafting their own acts so as to avoid any confficts with theFederal Government's control of civil aviation. The states appear toconsider their own regulations more as reiteration of the Federallaws than as supplements to them. This caution on the part of thestates is enhanced by decisions such as United States v. Drumm,2wherein it was stated "the operations of uncertified airmen any-where in the navigable air space overlying the United States, con-stitute a hazard to interstate, overseas and foreign commerce....[I]t is necessary that all pilots and aircraft operating in the airspace overlying the United States, be certified." In Arkansas,'Louisiana," New Mexico,' and Texas' the statutes make the simplerequirement that airmen (pilots, navigators, etc.) must possessan appropriate Federal license to operate aircraft lawfully withinthe air space superincumbent upon the state. In Oklahoma' air-men are required to register with the Oklahoma Aviation Com-mission and to renew their registration each year. However, thesole requirement for registration is the possession of a validFederal certificate.' An almost identical situation exists withrespect to aircraft. Arkansas,9 Louisiana,' ° New Mexico," Okla-'52 STAT. 977 (1938), 49 U.S.C. 1946 ed. § 401 et seq.2 55 F. Supp. 151, 155 (D. Nev. 1944).8 ARK. STAT. 1947 ANN. § 74-105.4 LA. STAT. ANN. (West, 1951) § 2-2.5 N. M. STAT. 1941 ANN. § 47.103.6 TEx. PEN. CODE (Vernon, 1948) art. 1137b.7 3 OKLA. STAT. ANN. (Perm. ed.) § 141 (a).8 3 OKLA. STAT. ANN. (Perm. ed.) § 141 (b).9 ARK. STAT. 1947 ANN. § 74-104.10 LA. STAT. ANN. (West, 1951) § 2.2.I' N. M. STAT. 1941 ANN. § 47-102.1953)SOUTHWESTERN LAW JOURNALhoma' 2- and Texas 3 require appropriate Federal certificates forall aircraft operating within their respective boundaries. Louisianahas the further requirement that all civil aircraft operated solelywithin the state more than ten consecutive days must be registeredwith the Department of Public Works. 4For purposes of self-protection a sovereign government pos-sesses the right and jurisdiction to control the airspace above itsterritory. In the United States it has been thought that each statehas this authority except where it is limited by the powers grantedthe Federal Government;15 therefore, the states may, to a rea-sonable extent, regulate the operation of aircraft engaged ininterstate commerce. The safety jurisdiction of the Federal Gov-ernment has been defined to include not only interstate, overseas,or foreign air commerce but also any operation or navigation ofaircraft which may endanger safety in interstate, overseas orforeign air commerce. I" This broad coverage includes all flightsof aircraft over the United States, and any state safety regulationsmust conform with those of the Federal Government or be withouteffect. Under the Federal Constitution the National Government'seconomic jurisdiction is fully as broad as that which it has oversafety, but has been asserted to cover only interstate, foreign oroverseas air commerce and the carriage of mail. The states areleft with authority to promulgate economic regulations over purelyintrastate, non-mail carrying flights which do not affect interstate,foreign or overseas air commerce, although a purely intrastatesituation in no manner affecting interstate commerce is difficult toimagine. In matters which are interstate but not national in scope,requiring no uniformity of action, the states and the FederalGovernment are said to have concurrent powers, and a state mayissue regulations which do not burden or discriminate against12 3 OKLA. STAT. ANN. (Penn. ed.) § 140.13 TEx. PEN. CODE (Vernon, 1948) art. 1137b.14 LA. STAT. ANN. (West, 1951) § 2-2.15 6Am. Jun. (Rev. ed. 1950), Aviation, § 12.6THOMAS, ECONoMIc REGULATION OF SCHEDULED AIR TRANSPORT (1951) 41.[Vol. 7NOTES AND COMMENTSinterstate commerce. 7 Regulation of air traffic is a proper func-tion of the legislative branch through the exercise of the policepower.Regulatory actions by the states are generally performed byadministrative bodies which have been either especially createdto control civil aviation or have been delegated additional powersfor this purpose. The Arkansas Department of Aeronautics" hasgeneral duties and powers to control and enforce rules concerningair ports, air navigation facilities, airmen instruction, etc., butis expressly forbidden to determine schedules, issuance of stock,public convenience, or adequacy of any common carrier in thestate.' General supervision over air common carriers is vestedin the Arkansas Public Service Commission," and no person mayengage as an air common carrier unless he has a valid certificatefrom the Commission.2' The supervisory powers of the Commissioninclude fixing rates,2 requiring periodic accounts, records andreports from the carrier, and supervising the issuance of securitiesif the carrier is incorporated under the laws of Arkansas.2" TheCommission is empowered to conduct hearings on matters arisingunder its jurisdiction; appeals from the orders of the Commis-sion are to the District Court of Pulaski County for a review ofthe record of the proceedings. 4 Interstate common carriers areexempt from the requirements of the legislation, 5 and anotherprovision" expressly exempts intrastate business incidental tothe interstate business of such common carriers. However, if theCommission believes the carrier's intrastate rates are not proper,17 Id. at 37.18 ARK. STAT. 1947 ANN. § 74-102.19 Id., § 74-103.20 § 74-403.21 § 74-405.22 § 74-416.23 § 74-417.24 § 73-133.25 § 74-409.26 § 74-422.1953]SOUTHWESTERN LAW JOURNALit is empowered to petition the Civil Aeronautics Administrationfor review and adjustment of these rates.2" Both the Public ServiceCommission and the Department of Aeronautics are cautionedagainst doing anything that may conflict with the orders, rules orregulations of the Federal Administrator of Civil Aeronautics orthe Civil Aeronautics Board.Louisiana has delegated its control over civil aeronautics tothe Department of Public Works." The Department may prescriberules concerning design and layout of air ports, air instructions,safety and air markings. 9 All proposed airports, landing fields,air schools, flight clubs and air navigating facilities must be ap-proved by the Department before any positive action may be takentowards their actual accomplishment.8" The Director of PublicWorks is vested with authority to direct and supervise all aero-nautical activities and to hold hearings and investigations con-cerning matters covered by the Louisiana Aeronautics Act.8 Wit-nesses to these hearings may be subpoenaed through the properdistrict court.82In the event an application for permission to establish or oper-ate an airport, air school, landing field, flying club or air beaconis refused, the party against whom the order has been issued mayappeal to the proper district court within ten days to have thereasonableness or lawfulness of the order inquired into or deter-mined.8 Upon trial the court hears evidence as to matters con-cerning the order in question and enters judgment either affirmingor setting aside the order of the Department, or may remand thematter to the Department for further hearing. 4 If no appeal is27 § 74-404.28 LA. STAT. ANN. (West, 1951) § 2-5.29 Id., § 2-6.80 § 2-8.81 § 2-9.82 § 2.10.88 § 2-14.8§ 2.15.[Vol. 7NOTES AND COMMENTStaken within the period fixed, the party is deemed to have waivedthe right to have the reasonableness or lawfulness of the orderreviewed by any court and may not raise the issue in any suitwhich may be brought for the penalty for failure to comply.85Copies of all rules and regulations made by the Department per-taining to aeronautics are kept on file with the Secretary of State."6The New Mexico Corporation Commission has the authority tomake regulations concerning common carriers and air traffic rulesapplicable to the operation of all aircraft within the state." Allair traffic rules promulgated by the Commission must conformwith the Air Commerce Act of May 20, 1926,"5 and all amend-ments thereto. Aircraft transporting passengers or materials outof the state and returning are expressly included under the juris-diction of the Commission,8" and all common carriers operatingin New Mexico must have a certificate of public convenience andnecessity from the Commission.0 The New Mexico AeronauticalCommission was created and vested with the power to promulgaterules and regulations designed to promote and encourage aero-nautics.' Its jurisdiction extends to the design and layout of air-ports, the instruction of airmen, and the installation of air navi-gation facilities, and it may enter into such agreements with anyagencies of the United States as will enable the State to secureall benefits which may be available to it under any aeronauticsprograms adopted by the agencies.4 One statute transferred to theAeronautics Commission all powers over aircraft other than com-mon carriers heretofore held by the Corporation Commission. 8The Attorney-General for the State has said the statute violates85 § 2-16.86 § 2-7.', N. M. STAT. 1941 ANN. § 47-107.8 44 STAT. 568, 49 U.S.C. 1946 ed. § 171 et seq.39 N. M. STAT. 1941 ANN. § 47-106.40 Id., § 47-108.41 § 47-112.42 § 47-113.48 § 47-115.1953]SOUTHWESTERN LAW JOURNALthe New Mexico Constitution, since there was nothing in the titleto indicate that the Corporation Commission was to be strippedof its power over all aircraft." To date the New Mexico Legisla-ture has done nothing to remedy this apparent defect.The Oklahoma Aviation Commission exercises a general con-trol over airports, air navigation facilities, and airmen instruc-tion."5 It is also empowered to establish, expand or modify a stateairway system. Its authority includes the promulgation of rulesand regulations designed to advance aeronautics within the state."As pointed out earlier, it also receives the registration of airmenoperating within the state. It is vested with the power to conducthearings concerning matters within its jurisdiction.47 It is the dutyof the Commission to enforce the Oklahoma Aeronautics Act, andit does so through the proper courts.4" The Commission may notgrant an exclusive right for the use of any airport, airway, orair navigation facility."9 The Oklahoma Corporation Commission,whose authority covers the issuance of certificates of public con-venience and necessity to common carriers operating within thestate, was said, in the ruling on Application of Central Airways,5"to have no authority to receive, or act upon, an application byan airline for a license to operate in the state.The Texas Aeronautics Commission is vested with the generalpowers and duties to supervise civil aviation within the state. Itsauthority includes prescribing rules of air flight, but it may makeno rules or regulations which may impose a greater restrictionupon aviation than now exists. The Texas Aeronautical Act spe-cifically states that the Commission shall have no authority to44Ops. ATr'Y.-GEN. OF N. M. (1939-1940) 99.45 3 OKLA. STAT. ANN. (Perm. ed.) § 74.46 3 Id., § 138.47 3 Id., § 142.48 3 Id., § 145.49 3 Id., § 136.5o 199 Okla. 300, 185 P. 2d 919 (1947).[Vol. 7NOTES AND COMMENTSissue certificates of public convenience and necessity within thestate. The Director of Aeronautics is charged with the duties ofenforcing any rules issued by the Commission.5 All of the stateshere considered have provided criminal penalties for the viola-tion of their aeronautical laws.Any person operating airplanes for the purpose of carryingpassengers for hire in the state of Louisiana must procure andexecute an indemnity bond with the obligation running in favorof any person that may be injured in person or property by hisoperation. The amount of the bond must be equal to $15,000 forthe first aircraft, plus $1,000 for each additional aircraft oper-ated.5" The New Mexico Public Service Commission has issued therequirement that all air common carriers must have personalinjury insurance in force equal to $1,000 for each seat in eachairplane they have operating in the state and $4,000 for eachaccident, plus $5,000 property damage insurance for each air-plane."'William 1. Davis.51 TE= REv. CIV. STAT. (Vernon, 1948) art. 46c-6, 8.52 LA. STAT. ANN. (West, 1951) § 45-2.53 N. M. Aircraft Common Carrier Reg., 1930.1953]THE SCHOOL OF LAWSouthern Methodist UniversityADMISSIONApplicants who have been granted the bachelor's degree or who havecompleted not less than 90 semester-hours of credit toward such degree andwho present acceptable academic records will be admitted as candidates forthe LL.B. degree. Students who have completed successfully a part of the lawcourse in another accredited law school may apply for admission for advancedstanding.Applicants for admission to candidacy for the LL.M. degree must have abachelor's degree from an accredited university or college and a law degreefrom an accredited law school. Besides the regular LL.M. degree, the LL.M.in Oil and Gas Law and the LL.M. in Taxation are granted. Fellowships areavailable to candidates for the specialized degrees in Oil and Gas Law andin Taxation.The Law Institute of the Americas is an integral part of the graduate pro-gram. Applicants admitted to the Institute pursue a prescribed curriculum and,on successful completion of the course, are granted the degree of Master ofComparative Law. Applicants must be graduates of approved law schools inNorth, Central or South America with at least two years' experience in practiceor teaching. Fifteen fellowships with stipends of $1500 each are available tooutstanding applicants.INSTRUCTION AND FACILITIESThe School of Law is located on the campus of Southern Methodist Uni-versity in Dallas, Texas. It is housed in three air-conditioned buildings recentlyconstructed with funds secured largely through the efforts of the SouthwesternLegal Foundation. The case method of instruction, followed by the leadinglaw schools in the country, is employed, and the curriculum is designed toprepare students for practice in any state or territory. The purpose of theinstruction is to instill careful scholarship, to develop the student's powers oflegal analysis, and to give training in application and use of the principlesand theories learned. Among the "practical" courses offered are brief writingand oral advocacy, practice court and legal draftsmanship.The Law School offers almost unequalled opportunities for learning andobservation outside the classroom. A great number of state and federal courtsare located in downtown Dallas, within 20 minutes from the campus. A LegalAid Clinic is operated by the Law School under the supervision of the faculty.Students with high scholastic averages are elected to the Board of Editors ofthe Southwestern Law Journal and gain practice in legal writing. During eachschool year several institutes or conferences on subjects of interest to the legalprofession are presented at the Law School under the sponsorship of the South-western Legal Foundation. The institutes last two to four days and are attendedby hundreds of attorneys.Request for application blanks and for a bulletin giving more detailedinformation should be directed to:Chairman of Admissions, SCHOOL OF LAWSOUTHERN METHODIST UNIVERSITYDALLAS 5, TEXAS

State Regulation of Aeronautics in the Southwest

https://scholar.smu.edu/cgi/viewcontent.cgi?article=4534&amp;context=smulr

State Regulation of Aeronautics in the Southwest

Abstract

Similar works

Full text

Available Versions

Southern Methodist University