All American Airways v. Village of Cedarhurst

• Decision Date: 07 January 1953
• Docket Number: Docket 22517.,No. 121,121
• Citation: 201 F.2d 273
• Parties: ALL AMERICAN AIRWAYS, Inc., et al. v. VILLAGE OF CEDARHURST et al.
• Court: U.S. Court of Appeals — Second Circuit

201 F.2d 273 (1953)

ALL AMERICAN AIRWAYS, Inc., et al. v. VILLAGE OF CEDARHURST et al.

No. 121, Docket 22517.

United States Court of Appeals Second Circuit.

Argued December 10, 1952.

Decided January 7, 1953.

James G. Moore, Garden City, N. Y. (Maurice Brandt, Cedarhurst, N. Y., on the brief and Emerson A. Swartz, Garden City, N. Y., on the brief for individual defendants-appellants), for defendants-appellants Village and officials.

Fowler Hamilton, New York City, for plaintiffs-appellees All American Airways, Inc., et al.

Sidney Goldstein, New York City, for plaintiff-appellee Port of New York Authority.

Samuel J. Cohen, New York City (Henry Weiss, New York City, of counsel), for plaintiffs-appellees Air Line Pilots Association International et al.

Watt H. Denison, Jr., and Joseph Lesser, New York City, on the brief, for appellees.

C. Dickerman Williams, Gen. Counsel, U. S. Dept. of Commerce, Washington, D. C. (Newell A. Clapp, Acting Asst. Atty. Gen., Daniel M. Friedman, Sp. Asst. to Atty. Gen., Emory T. Nunneley, Jr., Gen. Counsel, Civil Aeronautics Board, and Richard E. Elwell, Gen. Counsel, Civil Aeronautics Administration, all of Washington, D. C., and Frank J. Parker, U. S. Atty., and George Taylor, Asst. U. S. Atty., both of Brooklyn, N. Y., on the brief), for intervenor-appellee Administrator of Civil Aeronautics.

James L. Highsaw, Jr., Washington, D. C., for intervenor-appellee Civil Aeronautics Board.

Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This is an appeal from a district court grant of an injunction pendente lite, which restrains enforcement of an ordinance of the Village of Cedarhurst prohibiting aircraft, inter alia, from flying over the Village at altitudes lower than 1,000 feet until termination of an action seeking injunctive and declaratory relief. The court found the ordinance invalid as conflicting with congressional legislation, and regulations issued pursuant thereto, enacted under its constitutional power to regulate commerce; it held further that enforcement of the ordinance threatened the plaintiffs-appellees with irreparable injury. D.C.E.D.N.Y., 106 F.Supp. 521. This appeal under 28 U.S.C. § 1292(1) asserts that there can be no substantial doubt as to the validity of the ordinance and also that the district court lacked jurisdiction because the plaintiffs had failed to exhaust their remedies in the state courts.

The plaintiffs are ten airlines operating out of the New York International Airport, the Idlewild field, together with certain pilots representing themselves and others flying planes out of the airport, and the Port of New York Authority, which leases the land from New York City and maintains the airport. The defendants are the Village of Cedarhurst and its Mayor, Board of Trustees of four, and Attorney, sued both individually and as village officials. The Administrator of Civil Aeronautics and the Civil Aeronautics Board were permitted to intervene as plaintiffs. Although defendants appear to have consented to this intervention originally, they now protest that the intervenors have no standing in court. This, however, is clearly contrary to the express provisions and intent of amended Fed.Rules Civ.Proc. 24(b), 28 U.S.C.A. West India Fruit & S. S. Co. v. Seatrain Lines, 2 Cir., 170 F.2d 775, 778, 779, certiorari dismissed 336 U.S. 908, 69 S.Ct. 514, 93 L.Ed. 1072; Federal Intervention in Private Actions Involving the Public Interest, 65 Harv.L.Rev. 319, 328. Additional authority for the intervention is supplied by 28 U.S.C. § 1345 and 49 U.S.C.A. §§ 647, 648.

Idlewild is now one of the largest airports in the world, serving in more than 300 flights per day some 2,500,000 passengers per year, 800,000 for overseas passage — a number approximately equal to that of passengers using the Port of New York for ocean travel during the year 1952. Its cargo shipments are comparably large, while its property investment, as found by the trial judge, is upwards of one hundred million dollars and its gross operating revenues, in excess of three million dollars. It is situated in the southeastern corner of the Borough of Queens, in the City of New York, and numerous small villages of Nassau County are adjacent. The Village of Cedarhurst, one mile square and with about 6,000 inhabitants, is to the east, approximately 4,000 feet from its east boundary and 9,200 feet from the end of one of its major runways. The approach to this runway is directly over the Village, with the optimum approach altitude, as set by the Administrator and the Board, requiring a descent as low as 518 feet at the Village edge. After the series of unfortunate accidents, one of them resulting in the death of Judge Patterson, had occurred at other airports last year, the Board of Trustees of the Village conducted hearings, and then on March 31, 1952, adopted the disputed ordinance, effective June 15, 1952. The district court granted a stay before the effective date, and then, having received affidavits and taken testimony, granted the preliminary injunction under date of July 2, 1952, restraining all attempts at enforcement of the ordinance pending the determination of this action.

The ordinance adopted contains lengthy recitals taking official notice of "the killing and maiming of residents of municipalities similarly situated with respect to public airports, including Elizabeth," New Jersey, the proximity of the Village to Idlewild, the maintenance by the Port of New York Authority of "turning, maneuvering, approach and transition zones, day and night," the consequent operation of aircraft over the Village at heights ranging from approximately 200 feet to 1,000 feet above the ground level "without any legislative authority of the United States or of any agency thereof," and finding that the maintenance of these zones and the use thereof by aircraft "constitute a public nuisance, a trespass and a menace to the inhabitants of this Village and to their rights of property." Therefore, for the protection and promotion of the public health, safety, and general welfare of the community the Board of Trustees exercises the police powers vested in it by law to enact in some eight paragraphs that it shall be unlawful for any person to operate any aircraft lower than 1,000 feet over the Village or "within 1,000 feet in any direction of any dwelling in the Village" or "to maintain or use turning, maneuvering, approach or transition zones in the superadjacent air space" or to carry in this space gasoline or other explosive or inflammable material. The ordinance imposes a penalty for each offense of not more than $100; and a violation is denominated "disorderly conduct," and the violator, "a disorderly person." This makes such a person subject under N. Y. Penal Law, McKinney's Consol.Laws, c. 40, § 723 to punishment by "imprisonment in a county jail or workhouse for a term not exceeding six months, or by a fine not exceeding fifty dollars, or by both." The ordinance concludes with a separability clause and a provision for its effective date of June 15, 1952. Plaintiffs assert that defendants plan a vigorous enforcement of the ordinance; and this is not denied, but rather confirmed, by all the pleadings, briefs, and arguments presented by the defendants.

The power of the federal government to regulate aircraft is found in the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 401 et seq., which defines a broad public policy in the promotion of air commerce. This Act confers on the Civil Aeronautics Board the duty of promoting flight safety in air commerce by prescribing and revising air traffic rules, including rules as to safe altitudes of flight and for the prevention of collisions between aircraft. 49 U.S.C.A. § 551(a)(7). The Board may delegate its rule-making power to the Administrator of Civil Aeronautics. 49 U.S.C.A. § 551(c). Pursuant to this authority the Board and the Administrator have promulgated exhaustive air traffic rules, 14 CFR 60.1 et seq., with various provisions as to minimum safe...