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legally qualified to comply with simple regulations for aerial navigation across the Canadian border.
I am advised that as an act of courtesy the Air Board of Canada has given special permission to fly from the United States, but that this permission will expire on November 1 of the current year. And when it was contemplated that there should be a balloon race in this country last April, both because of scientific interest and because of sport, the balloons not being dirigible, and being liable to drift across the International Boundary, they had to get special permission from the Air Board of Canada, that if any particular balloon should cross the border it would be hospitably received, on certain conditions, which were prescribed by that Air Board. In Ottawa there is an Air Board, and I have been in correspondence with it.
The report contains a condensed story of the present situation of the law of aeronautics in this country. There are two or three things that I want to call your attention to in the most hasty way. There are several factors which have stood in the way of the proper commercial development in this country of the law of aeronautics and of civil flight. I do not need to say anything about the flight of government air craft. The government has already prescribed numerous statutory and other regulations with respect to government air craft. But so far as civil aircraft is concerned, and so far as a commercial flight is concerned, there never was a greater need for adequate laws than there is today, and there is practically no law whatever on the subject.
All the investigation which this committee has made has shown that those who are interested in commercial development find that it is the law that is defective and not the progress of the art that is at fault, and that if there was adequate law on the subject, we would have commercial aircraft developed rapidly in this country as a means of transportation both local and interstate and international. But capital will not invest in the purchase and operation of aircraft under present conditions. The insurance companies will not insure, because they do not know the extent of the risk.
The fundamental factor is not the mechanical factor, but the legal factor, and the sooner we appreciate that the better.
Now, there are two embarrassments in the proper development of the legal factor. The first is the theory, which our committee suggests ought not to be readily conceded, which is found in the very apt expression of Major Johnson, the legal adviser of the United States Army, on the subject, that the owner of land has no ceiling to his dome. Major Johnson, in the Air Service Information Circular, concedes that fact, and says that it calls for the exercise of the power of eminent domain in order to establish air routes in the air over the territory of the United States.
The first thing, then, to get through our heads, as I conceive it (and the committee's suggestions are all tentative) is that the burden is on the property owner to demonstrate that he has such a private property in the air though there is no possibility of jeopardizing his possession of the surface. That is, that he has such an interest in the air at a considerable distance above the surface that the power of eminent domain is necessary to acquire that right, and this proposition has not yet been established.
The other embarrassment in the proper development of this law is the dual nature of our government and the undoubted fact that there are constitutional limitations. Gentlemen who are very much interested in the subject matter may say that the United States Government has the unlimited power and the exclusive power to legislate with respect to flight through the air. But they will, in my judgment, be in the same category as those enthusiasts who championed the law that was passed in New York at a recent election to provide $15,000,000 for the payment of a bonus for returned soldiers. That was passed by an overwhelming majority of the voters. Yet day before yesterday it was declared by the Court of Appeals of New York State to be unconstitutional. You cannot get past the Constitution and you cannot enact any law that you wish by merely shutting your eyes and denying its existence.
The committee calls attention to the fact that although there are undoubtedly powers that may be exercised by the Congress of the United States, those powers have their limitations, and tha there are certain powers still reserved by the Constitution to the people of the states.
Our judgment, and it is a tentative judgment, is that the best ultimate solution of this question is one that will put the United States on a par with other nations, and that is a constitutional amendment, which will extend the power of Congress to legislate on flight through the air.
Major Johnson, representing the legal service of the United States Army, reaches exactly the same conclusion. With this conclusion the majority of the committee is in accord. He proposes a tentative amendment to the Constitution of the United States. Our observation with respect to that is this: That a reading of the amendment which he proposes leads to the obvious conclusion that it is framed upon present concepts of flight and its possibilities, and that it is so limited that it has no broad vision for the future, and that if any such power is granted to Congress by a constitutional amendment, it should be by an amendment of the broadest possible vision, and of the utmost possible scope. The committee has no recommendation to make with respect to the form of the law or the form of constitutional amendment. We think that the present, however, is an excellent time to call to the attention of the Bar for their careful consideration and for their best professional thought the fundamental principles by which we should be guided in attempting a proper solution of the question.
I will now read the recommendations which the committee reports and asks you to concur in.
(For Recommendations, see Report of Committee in Appendix, page 498.) I must not neglect this opportunity to speak with praise of the fact that Mr. William V. Rooker of Indiana, has had much to do with the recent activity that has induced the American Bar Association to enter upon this inquiry. When Governor Baldwin, in 1911, attempted to do so, it was not deemed the proper time. It is true that Mr. Rooker entertains the opinion that the Admiralty and Marine jurisdiction of the United States is sufficient to cover the entire field of this subject and that it needs no constitutional amendment, a view which the committee does not accept.
I submit the report and ask that the committee be continued as a special committee, by the Association. I would suggest in
that connection that we have been sufficiently educated in the terminology of the art now, so that hereafter the committee shall be known as the Committee on Aeronautics.
I submit these recommendations and move their adoption.
The motion was seconded.
The matter is now open for discussion. The proposition comes before the Association on the four recommendations stated by Mr. Boston.
R. Wayne Parker, of New Jersey:
I have to compliment the committee on the exceeding good judgment with which their report and recommendations have been drawn. One provision, the most important of all, in my opinion, is that no national legislation shall infringe upon the general powers of the states. Aviation is a matter of great importance, but it is not the only subject that involves these considerations: the whole subject of navigable waters inside the three-mile limit, involves the states and the federal government, the ownership of the land being in the state, while the navigation of the waters for interstate commerce is in the federal government. The question of the improvement of navigable rivers is in the same category. There is much doubt as to whether a dam constructed for the purpose of confining the waters of a stream is under the control of the state or of the United States. A more modern question is the control of hydroelectric power generated by a dam. Then there is wireless telegraphy, which is almost similar, going sometimes within states and sometimes across into other states and into other countries. The same question arises as to whether the United States has jurisdiction over the wireless. There are also the old questions of quarantine and the protection of agriculture from pests, and the regulation of migratory birds.
Aviation is not a single problem all by itself. It is one of a host of questions that has come up before this generation because of the wondrous progress in communication not only by wire, or
by land and by sea, but through the air, electricity, and through the ether.
I only mention these matters now in order to impress upon this Association the importance of the single subject that has been raised. I think the recommendations are in excellent form and ought to be supported, but at the same time the consideration of the subject must go very much further than the one question whether a man may fly from one state into another state or from this country into another country.
George C. Bogert, of Ithaca, N. Y.:
I rise to second the motion of Mr. Boston, that the committee recommendations be accepted. I do this as a member of the Bar Association Committee and also as Chairman of the Committee on Aviation of the Conference of Commissioners on Uniform State Laws. The Conference feels that there is a legitimate place for state legislation, as well as for federal laws. This attitude is entirely in harmony with that taken in Mr. Boston's report.
It would be futile to attempt to argue here whether the federal government has power under the admiralty clause of the Constitution to take exclusive control of aviation. This body cannot, in the limited time at its disposal, enter into an extended discussion such as would be necessary to form any opinion on the constitutionality of exclusive federal legislation. The most that we can do is to call to the attention of Congress the important constitutional questions involved, and leave to that body the determination of the constitutionality of various measures proposed to it.
William V. Rooker, of Indianapolis, Ind.:
Mr. Boston very graciously mentioned my name in connection with this work. At the Conference of Bar Association Delegates, held in Boston, 1919, I suggested that the jurisdiction over aerial communication would properly lie in admiralty. The matter was discussed there, and a resolution to that effect was adopted. I was made Chairman of a committee on that subject to pursue further investigation. My committee made its report to the conference of delegates at St. Louis, and we made that report