litigation and a degree of legal uncertainty until after an event), and except (among other exceptions) as modified by the rules and regulations (thus apparently conferring or attempting to confer upon an administrative officer the power to modify a law). It contemplates its own partial invalidity by saving the parts not held to be invalid.

It recognizes the continued existence of the states by authorizing the Commissioner of Air Navigation to cooperate with the various states, cities and municipalities for the purpose of setting aside and establishing airdromes and landing fields to be used in common by federal, state, municipal, commercial, and private aircraft, but under the rules and regulations to be promulgated by the commissioner.

While the members of this committee share the common view that the best interests of aeronautics demand that the power of the federal government shall be extended (but by constitutional amendment) to this subject matter, they do not regard the existence of the subject matter as sufficient excuse for ignoring either the Constitution or the states; nor do they consider that a new subject matter is within a constitutional category because it suits somebody to put it there. The bill itself tacitly acknowledges that the subject matter is not within the admiralty jurisdiction conferred by the Constitution when it naively provides that the maritime law shall be held to govern so far as applicable and except as modified (among other methods) by the rules and regulations promulgated by the Secretary of Commerce.

The Constitution says: "The judicial power shall extend

to all cases of admiralty and maritime jurisdiction" (Art. III, s. 2). The bill declares that navigable air and aircraft navigating the air are within the admiralty jurisdiction of the federal courts, but that maritime law shall be held to govern aircraft and air navigation only in so far as applicable thereto and as not modified (among other things) by the Secretary of Commerce. This provokes the inquiry whether it does not attempt to impair the constitutional judicial power by grasping the subject matter as within the category, and then making the law of the category in part inapplicable.

It does not seem to us that these problems of fundamental constitutional importance should be viewed with indifference either by the members of the American Bar Association or the public. The interests of aeronautics demand adequate legislation, but they do not demand the ignoring of constitutional limitations, nor the impairment, except by proper constitutional amendment, of the powers of the states.

We have thus analyzed this bill (which also prospectively contemplates that it may be utilized to enforce a treaty or convention, not yet entered into) because it is advocated by the National

Advisory Committee for Aeronautics, and is approved by the President in a special message of transmission to Congress. Other bills are pending, but this one is selected for this analysis and comment because it forcibly illustrates the constitutional problems involved, and has the distinction mentioned. It seems to us that it cannot without inevitable litigation be deemed of sufficient constitutional validity to promote substantially the art which it is designed to foster, by removing the uncertainties of law which cause capital and insurance to hesitate. It cannot be a very substantial advance to remove a controverted subject from the domain of silent uncertainty to the domain of constitutional uncertainty, with the general proviso that all valid parts of a law shall stand, though its invalid parts disappear, that maritime laws shall govern where applicable except as modified by the Secretary of Commerce, and that common law remedies shall be saved where the common law is competent to give a remedy. The rules and regulations may tend to safety of navigation when observed, but the law itself suggests uncertainty of the most fundamental character.

It is scarcely to be hoped that states which have already enacted laws and offenders and litigants will acquiesce in the view that the interests of the art demand that constitutional objections shall be smothered, or that the unconstitutional features of the bill will not be emphasized in litigation, though we are not unmindful that when, in the throes of the revolutionary war, the Continental Congress chartered the National Bank of North America as a financial aid, and its power was assailed, the legislature of New York generously also chartered the same organization and gave it for a time the monopoly of the banking privilege in New York (N. Y. Laws 1782, c. 35); nor that when Congress enacted the Interstate Commerce Act the state of Virginia substantially reënacted its appropriate provisions as applicable to intrastate traffic (Laws of Va. 1902-3-4, p. 968, c. 3; Commonwealth vs. Norfolk & W. R. R. Co., 111 Va. 59, 68 S. E. R. 351).

These examples afford a suggestion that the unconstitutional shreds of the approved bill, if enacted and if an unconstitutional grasp of power and invasion of state rights, might be supplemented by state legislation making its main purpose of properly regulating aeronautics by law, effectual.

The administrative questions, whose conflicting aspects are illustrated by the bills and resolutions now before Congress, are matters chiefly of internal governmental organization upon which we do not comment, though it is contended by the advocates of different views that they respectively are of vital importance.

1

TERMINOLOGY OF AERONAUTICS.

The accepted terminology of the subject is, we think, a matter which we should bring to the attention of the Executive Committee, since we are admonished that even the name of our committee is in the light of this terminology unnecessarily and even unwisely restricted. We are styled the Committee on the Law of Aviation, whereas a more comprehensive title would indicate a wider duty. The law is the law of aeronautics, aviation forming but a limited branch, though we assume that the incident of aerography is implicitly embraced within the term aeronautics.

The terminology of which we are advised is as follows:

Aeronautics.-General term covering whole science and art of aerial

II. Aviation-gasless, heavier than air. All these kinds of apparati are

known as aeronefs:

1. Airplanes, either tractor or pusher, land or water.

(A) Monoplane.

(B) Biplane.

(C) Triplane.

(D) Quadroplane, etc.

2. Ornithopter-a beating-wing machine. None of this type has to date been successful at flight.

3. Helicopter a direct-lift machine. Only successful experimentally as yet.

4. Kites.

5. Gliders.

THE COMMITTEE'S COLLECTION OF PERTINENT MATERIAL.

The committee has collected much printed matter which it will transmit when and if directed by the Executive Committee with a copy of this report for deposit with the custodian of the Association's books (By-Law V).

The committee deems the preservation of this material by the Association as a part of the historical literature of the subject desirable. This material includes newspaper clippings of current interest.

ADDITIONAL ITEMS.

Because of its especial interest to Americans, we invite attention to the form of the Air Board Act of Canada-9-10 Geo V, Ch. II-June 6, 1919, the Air Regulations, 1920, issued thereunder and in effect January 17, 1920, together with the explanatory description of the Air Administration, approved by the Chairman of the Air Board and published in Canadian newspapers in December, 1919.

The Hydrographic Office of the United States under the authority of the Secretary of the Navy has begun a monthly publication entitled "Notice to Aviators," the first number appearing under date November 1, 1920. In the April, 1921, number, it is announced that certain designated customs air ports have been established in Canada for planes from the United States, and that the Canadian Air Regulations have been modified to prohibit "stunts" in civil flying (except when a pilot is alone), in order to prevent accidents and to induce a realization that civil flying does not involve or require the taking of risks.

Since January 1, 1920, the Fedération Aéro Nautique Internationale (founded in 1905) has published a quarterly bulletin of interest to aviators.

In Boyd vs. United States, 116 U. S. 635, the Supreme Court of the United States announced it to be the duty of the courts to avoid encroachments on the Constitution.

In Scranton vs. Wheeler, 179 U. S. 141, it was said that the right to improve navigation is paramount to the riparian owner's right of access to the stream.

On June 21, 1920, Venezuela put into effect Laws of Aviation (April, 1921, JOURNAL issued by the American Bar Association, p. 194).

Congress has already legislated for the establishment of an Air Service in the Army (Act June 4, 1920, C. 227) and (Act June 5, 1920, C. 240) respecting the division of the control of aerial operations from land bases, and those attached to a fleet, including shore stations, between the Army and Navy, and concerning claims for damages not exceeding $250 (committed we assume by aircraft belonging to the national government) and (Act July 11, 1919, C. 8, 51) concerning instruction of enlisted or appointed flying cadets in flying schools, under the authority of the Secretary of War. Its earlier legislation on the subject included provision (Barnes Federal Code, Sec. 10147, Act March 3, 1915, C. 83) for the establishment of an advisory committee for Aeronautics, an Aircraft Board (Barnes Federal Code, sec. 10148, Act Oct. 1, 1917, C. 61, ss. 1-5); provision for aircraft production corporations, under the authorization of the Director

of Aircraft Production, to be dissolved, however, in proceedings to be begun within one year from the signing of the treaty of peace with the Imperial German Government (Barnes Federal Code, sec. 10149, Act July 19, 1918, C. 143, XVI, ss. 1-5); provision by appropriation for the acquisition of patent rights necessary to the manufacture and development of aircraft in the United States and its dependencies for governmental and civil purposes under regulations prescribed by the Secretary of War and the Secretary of the Navy (Barnes Federal Code, sec. 10150, Act March 4, 1917, C. 180); to authorize the President to establish an executive agency to exercise jurisdiction and control over the production of aeroplanes, aeroplane engines and aircraft equipment; the act to remain in force for six months after the proclamation of peace or earlier designation by the President (Act May 20, 1918, C. 78); for an experimental aeroplane mail service (Barnes Federal Code, sec. 6814, Act March 3, 1917, C. 162; July 2, 1918, C. 117); to authorize the President to sell war materials used in the construction of airplanes (Barnes Federal Code, sec. 1647); penalizing espionage by means of aircraft (Barnes Federal Code, sec. 9725, Act June 15, 1917, C. 30, title I, S. 1); to authorize the Secretary of the Navy to adjust claims for damage from naval aircraft operation (Act July 1, 1918, C. 114, S. 1). In at least one Congressional act aircraft were included in the word "ship" (Barnes Federal Code, sec 10153). Congress has also legislated respecting army aviation (Barnes Federal Code, Secs. 1531, 1537, 1587) including the organization of an aviation section in the Signal Corps (ibid., s. 1537), gratuities on deaths in the Navy or Marine Corps resulting from aviation accidents (ibid., S. 2360); the acquisition of land for the United States for aviation purposes (ibid., s. 1538), and the devotion of government property or land thereto (Act July 9, 1918, C. 143); the establishment of aviation stations for life saving and of an aviation school for members of the coast guard; the performance of aviation duty by officers and men of the Coast Guard (Barnes Federal Code, ss. 7820, 7821); the organization of a Naval Reserve Flying Corps (ibid., S. 2458); the pay of naval aviators (ibid., S. 2313). Our recommendations are stated at the beginning of this report.

CHARLES A. BOSTON, New York,

WILLIAM P. BYNUM, North Carolina,
GEORGE G. BOGERT, New York.

While I agree with the general conclusions reached in the foregoing report as to the proper and best methods of procedure, I have not yet reached any positive conclusion as to the authority and power of the federal government to enact aviation laws under