Allegheny Airlines v. Village of Cedarhurst

• Decision Date: 27 June 1955
• Docket Number: Civ. A. No. 12680/1952.
• Citation: 132 F. Supp. 871
• Parties: ALLEGHENY AIRLINES, Inc., et al., Plaintiffs, Civil Aeronautics Board and Administrator of Civil Aeronautics, Intervenors, v. VILLAGE OF CEDARHURST et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

132 F. Supp. 871

ALLEGHENY AIRLINES, Inc., et al., Plaintiffs Civil Aeronautics Board and Administrator of Civil Aeronautics, Intervenors, v. VILLAGE OF CEDARHURST et al., Defendants.

Civ. A. No. 12680/1952.

United States District Court E. D. New York.

June 27, 1955.

Fowler Hamilton, New York City, Watt H. Denison, Jr., Andre W. G. Newburg, New York City, of counsel, for plaintiffs Allegheny Airlines, Inc., et al.

Sidney Goldstein, New York City, Nathaniel Fensterstock, New York City, of counsel, for plaintiff Port of New York Authority.

Samuel J. Cohen, New York City, Henry Weiss, New York City, of counsel, for plaintiffs Air Line Pilots Ass'n International et al.

Leonard P. Moore, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y., Robert P. Doyle, General Counsel, Civil Aeronautics Administration, Washington, D. C., S. W. Bobskill, Regional Atty., New York City, Emory T. Nunneley, Jr., General Counsel, Civil Aeronautics Board, Washington, D. C., Gerald F. White, Chief, Litigation Division, Civil Aeronautics Administration, Raleigh, N. C., H. Grady Gatlin, Jr., Attorney, Civil Aeronautics Administration, Washington, D. C., Arthur D. Hickerson, Asst. U. S. Atty., Brooklyn, N. Y., of counsel, for intervenors.

James L. Highsaw, Jr., Gerald F. Krassa, Washington, D. C., of counsel.

James G. Moore, Garden City, N. Y., for defendant Village of Cedarhurst.

Emerson A. Swartz, Garden City, N. Y., for individual defendants.

Max M. Lome, Laurelton, N. Y., for Laurelton Civic Ass'n, Central Queens Allied Civic Council, Inc., Queens Committee for Aviation Reforms, Inc., amici curiae.

Jacob Javits, Atty. Gen. of State of New York, for petitioners.

William Alpert, Asst. Atty. Gen., amicus curiae.

Madeline C. Dinu, Detroit, Mich., for National Ass'n of State Aviation Officials, amicus curiae.

Leander I. Shelley, New York City, for Airport Operators Council, amicus curiae.

John T. Clancy, Long Island City, N. Y., for Chamber of Commerce of Borough of Queens, amicus curiae.

BRUCHHAUSEN, District Judge.

The action involves the constitutionality of an ordinance, prohibiting air flights over the Village of Cedarhurst, below 1,000 feet. It does not affect the rights of property owners.

The action was tried without a jury, following an order striking out the defendants' demand for a jury trial. D.C., 15 F.R.D. 490.

The plaintiffs, comprising ten Airline Companies, The Port of New York Authority, The Air Line Pilots Association International and nine air pilots in their individual capacities, having interests in and concerning New York International Airport, known as "Idlewild", situated in Queens County, State of New York, instituted this action against the Village of Cedarhurst and various named defendants in their official and individual capacities for a decree, adjudging unconstitutional and void and enjoining enforcement of an ordinance adopted by the said Village which prohibited the operation of aircraft below an altitude of 1,000 feet above the Village. The Village is situated within a mile of the Airport.

The Administrator of Civil Aeronautics and the Civil Aeronautics Board intervened as plaintiffs in the action.

Since the commencement of the action, the original plaintiff, All American Airways, Inc., changed its name to Allegheny Airlines, Inc.

Prior to the trial, a preliminary injunction order in favor of the plaintiffs was granted by this Court and affirmed on appeal, 106 F.Supp. 521; Id., 2 Cir., 201 F.2d 273, and a motion to dismiss a counterclaim contained in the answer of the individual defendants was denied, D.C., 111 F.Supp. 677. During the trial, counterclaims of the individual defendants, who were owners of dwellings situated within the village boundaries, and demands for judgment declaring the Airport to be a nuisance and for an injunction restraining the commission of trespass, were withdrawn. All of the defendants, in their pleadings, sought a dismissal of the complaint and, in addition thereto, the individual defendants questioned the validity of Federal regulations and statutes, authorizing the flight of aircraft at less than 1,000 feet above the Village and sought a decree, declaring them unconstitutional and void.

The specific issue presented.

The basic question presented was whether Congress pre-empted the field of regulation and control of the flight of aircraft, including the fixation of minimum safe altitudes for take-offs from and landings at airports, despite the fact that such altitudes might be less than 1,000 feet. More particularly, the question is what, if any, airspace below the altitude of 1,000 feet Congress has determined to be navigable airspace, subject to flight control.

The origin and development of public airports, including Idlewild Airport, and related matters.

It is common knowledge that the use of airplanes in World War I for military purposes gave impetus to the development of planes for commercial use.

While Congress, more than 30 years prior to that event, had legislated in the branch of transportation pertaining to railroads and created the Interstate Commerce Commission to carry on that function, the first legislation recognizing the airplane as an instrument of transportation in commerce was the Air Commerce Act of 1926, following a message from President Coolidge to Congress stating that "aviation is of great importance both for national defense and commercial development." By that Act, 49 U.S.C.A. § 171 et seq., the Secretary of Commerce was empowered to provide for registration of aircraft; for the rating of aircraft as to worthiness; for the periodic examination and rating of air pilots; for the examination and rating of air navigation facilities available for the use of aircraft; for the establishment of air traffic rules and for the suspension and revocation of any of the certificates issued by the Secretary.

An early public expression of opinion that municipalities should build airports for the new traffic was the statement made in 1928 by Chief Judge Cardozo in the case of Hesse v. Rath, 249 N.Y. 436, 164 N.E. 342, viz.:

"Aviation is to-day an established method of transportation. The future, even the near future will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race of competition. Chalcedon was called the city of the blind, because its founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness."

Rapid development of aviation resulted in the more comprehensive statute, the Civil Aeronautics Act of 1938, 49 U.S. C.A. § 401 et seq. By it was created a new Civil Aeronautics Board and a separate administrator and the Secretary of Commerce was relieved of jurisdiction. Congress thereby stressed the need for the development of aviation and the promotion of safety of operation and imposed upon the administrator consideration of "the encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense".

Congress, increasingly aware of the need of control of the means of transportation in interstate commerce, in 1940, 49 U.S.C.A. § 301 et seq., enlarged the jurisdiction of the Interstate Commerce Commission by charging it with the function of regulating the activities of motor carriers, thus largely replacing the control exercised over those means of transportation by States and Municipalities.

That Congress contemplated and enacted legislation for the comprehensive regulation of air commerce and that the objectives have been carried out was indicated in the concurring opinion of Mr. Justice Jackson in the case of Northwest Air Lines v. State of Minnesota, 1944, 322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283, wherein he said:

"Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government."

Idlewild Airport originated in the year 1941, when the site was selected. The airport comprises approximately 4,900 acres of land, acquired by the City of New York from private owners, and, in part, by conveyances by the Town of Hempstead, wherein the defendant Village of Cedarhurst is situated, and by the State of New York. It was necessary to procure acts of the Legislature of that State, authorizing those conveyances. By Chapter 369 of the Laws of 1942 of that State, the Town of Hempstead was authorized to convey, gratis, to the City of New York 65 acres of land under water in Jamaica Bay, as laid out on the plan for the construction of Idlewild Airport, to be held by the grantee so long as the property should be used as an airport and related purposes and upon termination of such use to revert to the Town. The Town of Hempstead, pursuant to that statute, by deed dated May 4, 1942, conveyed the said land for that purpose and under the said condition. As part of the program, the boundary lines between the City of New York, County of Nassau and the Town of Hempstead were fixed by Chapter 895 of the Laws...