United Air Lines, Inc. v. Civil Aeronautics Board
Concurring Opinion
(concurring in the result and generally in the opinion).
I agree that the order of certification must be set aside and the case remanded. I also agree with the opinion of the court except that I think the Board had adequate basis in the record to find, in accordance with section 401(d) (1) of the Act, that the applicants were fit, willing and able to perform the transportation properly.
Opinion of the Court
This is another phase of the problem of the supplemental air carriers.
The authority to issue certificates is conferred on the Board by Section 401 of the Federal Aviation Act of 1958.
“Each certificate issued under this section shall specify the terminal points and intermediate points, if any, between which the air carrier is authorized to engage in air transportation and the service to be rendered; * *
It seems plain beyond possibility of debate that a blanket authorization to operate between any two points in the United States is not a specification of the terminal points and the intermediate points, if there be any intermediate stopping points, of the operation. The legislative history supports this clear reading.
The certificates issued here also contained a limitation of the operation to ten flights each calendar month in the same direction between the same two points. Section 401(e) of the Act contains this provision: “No term, condition, or limitation of a certificate shall
The Board and the intervenors argue that supplemental air service is in the public interest and that the overall statutory scheme and the legislative history indicate an intention on the part of the Congress to empower the Board to issue certificates when it finds certificates to be in the public interest. But these generalities of intent and history cannot strike from a statute peremptory, unambiguous directives. If the requirements of Section 401(e) interpose an insuperable obstacle to the full development of supplemental air service, which they may well do, the problem is for the Congress. The Board should present it there. The courts cannot rewrite plain statutory terms, unless the inadvertent result of plain wording is absurd when applied to certain facts.
Section 401(d) (1) of the Act provides that
“The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly * * *.”
The Board gave the same nationwide cargo and passenger authority to each of the applicants to which it issued certificates. In many instances the prior operations of individual applicants had been small or specialized, and in many instances the financial resources, adequate for the types of operations theretofore conducted by the carriers, were obviously inadequate for operations of the scope authorized by the certificates.
The Board argues that it gave weight to “going-concern” status (which petitioners call the “renewal” aspect) and careful consideration to the carriers’ financial position and managerial makeup. But we think some effect must be given the word “such” in the above-quoted part of Section 401(d) (1). The applicant must be found fit, willing and able to perform “such” transportation, obviously referring to the transportation authorized by the certificate. Since these certificates were nationwide in scope and broad in authority, the qualifications of the applicants for that sort and kind of operation is the statutory prescription. Within that general concept, going-concern status and financial position are important considerations. But they must be considered only in so far as they indicate qualifications for the operation authorized in the certificate. Those considerations in less expansive measure might well be the criteria for more limited certifications.
The Board says that, based upon experience with these carriers, it determined that authority for these supplemental operations need not, and should not, be parcelled out in limited segments of the over-all supplemental picture. The Board says it concluded that the certification of a number of carriers, left basically free to pick and choose for themselves the phases of the program in which they would operate, would best meet the needs of the public. But the Congress put into its statute clear requirements as to certificates, and those requirements for specified terminal points and intermediate points, if any, are counter to the sweeping pick-and-choose concept which the Board says guided it. It may be that the supplemental air carrier problem had not fully developed when the original statute was enacted,
We do not have before us in the present case exemption authority under Section 416 of the Act and so express no opinion on that matter.
The petitions for review also include an order of the Board
Order No. E-13436 set aside and proceedings remanded.
. Large Irregular Carriers, Exemptions, 11 C.A.B. 609 (1950); American Airlines v. Civil Aeronautics Board, 98 U.S.App.D.C. 348, 235 F.2d 845 (D.C.Cir. 1956).
. 72 Stat. 754, 49 U.S.C.A. § 1371.
. The predecessor statute, the Civil Aeronautics Act of 1938, did not differ in pertinent part from the current Act.
. Order No. E-13435.
. Orders Nos. E-9744 and E-9884.
. 98 U.S.App.D.C. 348, 235 F.2d 845 (1956).
. Order No. E-13436.
. Order No. E-13436.
Reference
- Full Case Name
- UNITED AIR LINES, INC. v. CIVIL AERONAUTICS BOARD, Modern Air Transport, Inc., Quaker City Airways, Inc., All American Airways, Inc., Intervenors EASTERN AIR LINES, INC. v. CIVIL AERONAUTICS BOARD, Quaker City Airways, Inc., Modern Air Transport, Inc., All American Airways, Inc., Intervenors PAN AMERICAN WORLD AIRWAYS, INC. v. CIVIL AERONAUTICS BOARD, Quaker City Airways, Inc., Modern Air Transport, Inc., All American Airways, Inc., Intervenors ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. CIVIL AERONAUTICS BOARD, Modern Air Transport, Inc., Supplemental Air Carrier Conference, United States Overseas Airlines, Inc., Quaker City Airways, Inc., All American Airways, Inc., Intervenors TRANS WORLD AIRLINES, INC. v. CIVIL AERONAUTICS BOARD, Quaker City Airways, Inc., United States Overseas Airlines, Inc., Supplemental Air Carrier Conference, Modern Air Transport, Inc., All American Airways, Inc., Intervenors AMERICAN AIRLINES, INC. v. CIVIL AERONAUTICS BOARD, Quaker City Airways, Inc., United States Overseas Airlines, Inc., Supplemental Air Carrier Conference, Modern Air Transport, Inc., All American Airways, Inc., Intervenors DELTA AIR LINES, INC. v. CIVIL AERONAUTICS BOARD, Quaker City Airways, Inc., Modern Air Transport, Inc., All American Airways, Inc., Intervenors NORTHWEST AIRLINES, INC. v. CIVIL AERONAUTICS BOARD, Modern Air Transport, Inc., Quaker City Airways, Inc., All American Airways, Inc., Intervenors NATIONAL AIRLINES, INC. v. CIVIL AERONAUTICS BOARD, Modern Air Transport, Inc., Quaker City Airways, Inc., All American Airways, Inc., Intervenors
- Cited By
- 4 cases
- Status
- Published