Pioneer Airways, Inc. v. City of Kearney, s. 41076

• Decision Date: 13 July 1977
• Docket Number: Nos. 41076,41173,s. 41076
• Citation: 256 N.W.2d 324,199 Neb. 12
• Parties: Application of PIONEER AIRWAYS, INC., Denver, Colorado, for Authority to Operate as a Class "C" Air Carrier in Nebraska Intrastate Air Transportation, Pioneer Airways, Inc., a Nebraska Corporation, Appellee, v. The CITY OF KEARNEY, Nebraska, a Municipal Corporation, Appellant, impleaded with the City of Kearney, Nebraska, the City of McCook, Nebraska, the City of Sidney, Nebraska, the City of Hastings, Nebraska, Kearney Municipal Airport Corporation, Hastings Airport Authority, Southern Route Commission, Appellees, and Columbus Airport Authority, Nebraska Department of Aeronautics and Lincoln Airport Authority, Intervenor-Appellees. Application of STAR AVIATION CORP., Denver, Colorado, for Authority to operate as a Class "C" Air Carrier in Nebraska Interstate Commerce, Star Aviation Corp., Denver, Colorado, Appellee, v. The CITY OF KEARNEY, Nebraska, a Municipal Corporation, Appellant, Impleaded with Pioneer Airways, Inc., Appellee, Nebraska Department of Aeronautics.
• Court: Nebraska Supreme Court

Page 324

256 N.W.2d 324

199 Neb. 12

Application of PIONEER AIRWAYS, INC., Denver, Colorado, for Authority to Operate as a Class "C" Air Carrier in Nebraska Intrastate Air Transportation, Pioneer Airways, Inc., a Nebraska Corporation, Appellee, v. The CITY OF KEARNEY, Nebraska, a Municipal Corporation, Appellant, impleaded with the City of Kearney, Nebraska, the City of McCook, Nebraska, the City of Sidney, Nebraska, the City of Hastings, Nebraska, Kearney Municipal Airport Corporation, Hastings Airport Authority, Southern Route Commission, Appellees, and Columbus Airport Authority, Nebraska Department of Aeronautics and Lincoln Airport Authority, Intervenor-Appellees.

Application of STAR AVIATION CORP., Denver, Colorado, for Authority to operate as a Class "C" Air Carrier in Nebraska Interstate Commerce, Star Aviation Corp., Denver, Colorado, Appellee, v. The CITY OF KEARNEY, Nebraska, a Municipal Corporation, Appellant, Impleaded with Pioneer Airways, Inc., Appellee,

Nebraska Department of Aeronautics.

Nos. 41076, 41173.

Supreme Court of Nebraska.

July 13, 1977.

Syllabus by the Court

1. The power of Congress over interstate commerce extends to those intrastate activities which so affect interstate commerce or the exercise of the power of Congress over it as to make appropriate the attainment of a legitimate aim of Congress.

2. The power of Congress to regulate interstate commerce is not limited by the fact that intrastate transactions have become so interwoven therewith that the effective control of interstate commerce by Congress incidentally controls intrastate commerce.

3. Congress has preempted the field of interstate air transportation in regard to the routes and points to be served by commuter air carriers to the exclusion of conflicting regulation by the states.

4. The Nebraska Public Service Commission lacks jurisdiction over commuter air carriers engaged in interstate commerce, since the federal government has preempted the field.

Michael E. Kelley, City Atty., Kearney, H. Edward Kluver, Denver, Colo., for appellant in 41076.

A. J. Swanson of Peterson, Bowman, Coffman & Larsen, Lincoln, for appellee Pioneer Airways.

Noyes W. Rogers, Columbus, for intervenor-appellees.

Michael E. Kelly, City Atty., Kearney, for City of Kearney in 41173.

Robert W. Emch, Pres., A. J. Swanson, Lincoln, H. Edward Kluver, Denver, Colo., for appellee Star Aviation.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

C. THOMAS WHITE, Justice.

Pioneer Airways, Inc., and Star Aviation Corp. each filed applications seeking authority from the Nebraska Public Service Commission to operate an air carrier service between Denver, Colorado, and points in Nebraska. Pioneer sought to operate its service between Denver and Omaha with intermediate stops at Chadron, Alliance, Sidney, McCook, Kearney, Hastings, Columbus, and Lincoln. Star sought to operate its service between Denver and Columbus, with intermediate stops at McCook, Hastings, and Kearney. The appellant City of Kearney protested each application and filed a special appearance challenging the jurisdiction of the Nebraska Public Service Commission to issue the requested certificates of authority. The City of Kearney maintains that the Commission lacks jurisdiction under Nebraska's statutes, that the Commission lacks jurisdiction due to its own rules and regulations, and further that the field has been preempted by the federal government.

On first impression, the case would seem to be controlled by Frontier Airlines, Inc. v. Nebraska Department of Aeronautics, 175 Neb. 501, 122 N.W.2d 476 (1963). In that case, Frontier Airlines sought a disclaimer of jurisdiction by the then Nebraska State Railway Commission, now the Public Service Commission, of any attempt to assert jurisdiction over the matter of discontinuance of service over applicant's segment No. 13. That segment extended between Omaha, Nebraska, and Casper, Wyoming, with intermediate points of Lincoln, Columbus, Norfolk, Ainsworth, Valentine and Chadron in Nebraska and Douglas and Lusk in Wyoming. We held: "It appears that Congress has pre-empted the field of interstate air transportation in regard to the routes and points to be served by interstate air carriers to the exclusion of conflicting regulation by the states. * * *

"It follows that the Nebraska State Railway Commission lacks authority to compel a carrier licensed by the Civil Aeronautics Board to continue operations over a segment which that board has authorized to be discontinued, since the federal authority is paramount in this area and the conflicting directive of the state's agency interferes with the national policy."

The decision was grounded upon the finding that Title 49 U.S.C., section 1301 et seq., the statutes creating a federal scheme of regulating air traffic, preempted the field of aviation in interstate commerce. Although several of the flights in the segment were wholly intrastate, it was found that even the regulation of those flights was preempted. We said: "The power of Congress over interstate commerce extends to those intrastate activities which so affect interstate commerce or the exercise of the power of Congress over it as to make appropriate the attainment of a legitimate end (aim) of Congress." We also said that the power of Congress " 'to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective control of interstate commerce by the Federal Congress incidentally controls intrastate commerce.' "

In the Frontier case, Frontier Airlines was operating under a certificate of public...