interest is illustrated by the following list of aero clubs in the United States and Cuba, which has been furnished to us through the Aero Club of America: Aero Club of Oregon, Portland, Ore. Aero Club of Pittsfield, Pittsfield, Mass. Kansas City Aero Club, Kansas City, Mo. Harvard Aeronautical Society, Harvard University, Cambridge, Mass. Aero Club of Illinois, Chicago, Ill. Aircraft Club of Peoria, Peoria, Ill. Aero Club of Michigan, Detroit, Michigan. Aero Club of the Northwest, Seattle, Wash. Aero Club of Hawaii, Honolulu, H. I. Aero Club of the Philippines, Manila, P. I. Aero Club of Southern California, Los Angeles, Cal. No one can examine the list of publications annexed to our former preliminary report (to which we now direct attention without reprinting it) without an appreciation of the vast importance of a comprehensive view of the problem in jurisprudence which is presented. This is peculiarly true in the United States on account of the division of power between the national government and the states. Many persons interested in the practical development of flight through the air have no conception of the existence, at the threshold, of a constitutional problem arising from this division of power; they are impatient of our apparent inaction; and practically with one accord they appear to look to the national government for relief; they see other governments active with international conventions and national laws, and cannot and do not care to comprehend why anyone hesitates to believe that the powerful government of the United States has not every power which any other government exercises to promote and to regulate air flight. These people, anxious for immediate results, are not impressed that there ought to be any embarrassment or any hesitation in determining what government should legislate or that it has complete and unlimited power, howsoever there may be doubt as to the precise terms of any law or as to the place where or the organization under which proper development or proper regulation should proceed and be maintained. For example, the recent ordinance of the City of New York (approved February 23, 1921, No. 31, "An ordinance in relation to the operation of aircraft over the City of New York"), to secure the safety of its people against improper flying over the city, appears to concede without doubt or question the plenary power of Congress to regulate local flight, by providing that it shall be in force until Congress legislates, "at which time the provisions of this ordinance shall automatically cease and become void"; thus apparently exhibiting impatience that Congress has not already acted, and providing that the life of the ordinance shall expire with Congressional action. This illustrates the mood of those who are impatient for commercial results and for commercial opportunities and who are unconcerned for constitutional problems, or constitutional limitations, and who are indifferent to the preservation of the reserved rights of the states or their people. They see that the problem of flight is peculiarly a problem of uniform law, and they naturally look to a unitary source for a uniform law. They cannot conceive that one national government and 48 state governments can legislate efficiently for the one subject matter, flight and its incidents. And when it comes to local ordinances regulating overhead flight, it can readily be perceived that any people who are so organized as to permit or to compel regulation of air flight by local ordinance, are headed for a confusion which will retard the development of the art. They reason that unity of fundamental control is obviously essential and that any nation which is so organized as to preclude this, or to admit of confusing interference of rule, cannot properly compete in the race of aeronautical development. They urge that the United States is a nation and should have the essential powers for the complete regulation of air flight, since such flight must develop internationally along national lines, and thus far has so developed. But having stated their point and made their argument apparently upon a base of economic truth, they concede and indeed insist as a matter of economic necessity and essential reality that the United States has the power, instead of merely urging that it should have the power. Constitutional problems and fundamental theories respecting an indestructible union of indestructible states, each operating within its own sphere of sovereignty, with the national government a government of delegated powers and all other powers reserved to the states or the people, make no appeal to those who are impatient to see the actual commercial development of air flight and who recognize, or think they recognize, its possibilities; and who also recognize that the economic barriers now existing to such development are barriers whose foundation is law, or uncertainty of law, or absence of law. Military or postal flight and the military or postal development of flight (at least theoretically) present no substantial problems of constitutional law; though there are wide differences of opinion respecting the problem of organization, illustrated by the many projects before Congress, concerning methods of organization, whether of a single and separate department, or several bureaus in different departments, or a single bureau under a single department. But, though pending bills before Congress, existing and pending state legislation, and existing municipal ordinances, all essay to regulate civil flight, as if each legislative body had control of the subject with which it deals, there is, of course, in the field of jurisprudence, a fundamental and serious problem, arising out of the inherent nature of our dual organization of government into national and state, with the former a government of delegated powers and the latter or the people, not only presumptively, but explicitly (10th amendment to U. S. Constitution) still possessed of all of the powers not delegated to the United States "by the Constitution nor prohibited by it to the states." The Constitution neither expressly delegates to the United States powers over air flight as such nor prohibits them to the states; presumptively, therefore, they still reside either with the states or the people, but they do not reside with the United States nor with Congress. If the United States or its Congress as a legislative body has the power, it must be because in a specific case air flight falls within the scope of some other power; such powers are obviously the power to make treaties, to maintain international relations, to control interstate commerce, to raise revenue. In the exercise of any of these powers, or as incidents to their exercise, Congress might legislate more or less effectively, yet not without an extension of the power, or a judicial stretch of the imagination respecting the legitimate scope of the power, could complete control of air flight be exercised by the national government or any of its functionaries. There are those who maintain that air flight is comprehended within the admiralty and maritime jurisdiction of the United States (Constitution, Art. III, sec. 2). Without discussion the Conference of Delegates from State and Local Bar Associations at Boston on September 2, 1919, adopted a resolution to appoint a committee to investigate the subject further, but expressed the sense of the Conference that aeronautics and aerography "should lie within the admiralty jurisdiction of the United States and should be entertained accordingly." But it would seem that the Constitution recognizes admiralty and maritime jurisdiction as something existing, not something to be created, and extends the judicial power to it. We are not unmindful that the judicial concept of what admiralty and maritime jurisdiction is has broadened in the United States to include all navigable waters. (The Propeller Genessee Chief vs. Fitzhugh, 12 How. 443, 13 L. Ed. 1058); nor are we unmindful that Congress, besides its enumerated powers, has general power (Constitution, Art. I, sec. 8) to make all laws for carrying into execution "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." We have seen a gradually expanding assertion or exercise by Congressional legislation of power over matters which are not expressly stated by the Constitution to be within the powers delegated to the United States, the most noteworthy of which, perhaps, is the regulation of the prescription of habit-forming drugs by medical practitioners, under the guise of revenue legislation (Harrison pure food and drug law); and we have seen a corresponding willingness in the judicial authorities to recognize this tendency to expand as a constitutional exercise of power. So that no one, though he be sworn to uphold the Constitution (Art. VI) (including, we assume, its tenth amendment declaratory of the reservation of powers to the states or to the people), can with assurance predict the fate of an Act of Congress asserting or assuming that air flight is within the admiralty or maritime jurisdiction. Yet there are obvious arguments against it, which we need not repeat. Those advocates of this view who base it upon the analogy of air navigation to ocean navigation, and of the atmosphere to the high seas, appear to overlook the current international recognition of sovereignty over the air above the land. The complete analogy of the air to the high seas having failed to receive international recognition, it would seem unlikely that such analogy could be successfully utilized to support a claim of admiralty or maritime jurisdiction over the air. There would, too, be embarrassments in the recognition of such jurisdiction with its present limitations. Abundant illustrations of these limitations are collated in the Air Service Information Circular of February 26, 1921, pp. 15-18, and in Professor Bogerts' article on Problems in Aviation Law, pp. 34-35, both hereinafter mentioned. Hydroaeroplanes have, however, already, while afloat in water, or as capable of such flotation, been treated as within the maritime jurisdiction. (Libel in S. D. of N. Y.— verbally reported by Mayer, D. J., to chairman of this committee.) But aeroplanes have been judicially determined not to be. (The Crawford Bros., No. 2, 215 Fed. R. 269. See 28 Harv. Law R. 200, 3 Cal. L. R. 143, 49 Am. L. R. 599.) It appears to us that it would be undesirable for the development of the art of civil flight through the air to assume that jurisdiction over it rests within the constitutional extension of the judicial power of the United States to admiralty and maritime jurisdiction, with the constitutional general grant of power to Congress to make laws for carrying into execution the powers vested by the Constitution in the government of the United States or any of its departments or officers. While we also recognize that as incidental to the power to lay taxes, or to regulate interstate or foreign commerce, or to pass laws to carry out the provisions of treaties, or in the exercise of other specific powers, Congress may legislate respecting air flight, we also recognize that without an unprecedented extension of the claims of the exercise of constitutional power, and unprecedented judicial recognition of an unprecedented claim, there can be no complete control of the subject matter by national legislation. From the purely theoretical standpoint of the dual division of sovereign powers, there is no reason why the respective spheres should not be left within the present constitutional limitations, with attempted legislation, judicial decision, and actual experience to shape their ultimate configuration. But any such method, in our judgment, overlooks the immediate and practical demands of the situation. So far as our investigations or information indicates, while there is a practical demand that Congress shall legislate promptly and comprehensively, there is no similar demand that the Constitution shall be so amended as to make such assertion of power unquestionably constitutional. It seems to us that this is because the economic demands are known only to those who are untrained along the lines of jurisprudence and constitutional law, and those who know these aspects of the problem are unaware of the economic demands. When representatives of this committee have conferred with those who are practically interested in the commercial development and have suggested the advisability of a constitutional amendment to put into effect a power which they have universally declared to be an economic necessity, those interested commercially have expressed a preference for the immediate exercise of the existing powers of Congress, with the possible result of unconstitutional legislation, over the more certain method of con |