tice has been to publish statistical material of the sort above described at approximately six-month intervals.

I am of the opinion that the course which you have followed, with respect both to the manner and time of publication, has been within the limits of your discretion under the statute and in substantial compliance with its requirements.

Respectfully,

WILLIAM D. MITCHELL.

FURNISHING ASSISTANCE TO AIRCRAFT UNDER THE AIR COMMERCE ACT OF 1926

[38 Op. A. G. 145]

DECEMBER 7, 1934.

The SECRETARY OF WAR.

SIR: I have the honor to refer to our recent exchange of communications and to enclose herewith, for your information, copies of letters addressed to me under date of September 8, 1934, by the Secretary of State and under date of November 2, 1934, by the Secretary of Commerce, in connection with your request for my opinion regarding the authority of the Army Air Corps, in the Canal Zone and in the Philippine Islands, to repair and service private airplanes, commercial airplanes, and airplanes of the Republic of Panama.

You state that a difference of opinion exists between your Department and the Department of Commerce, but all concerned apparently agree that the matter is governed entirely by the following paragraph of the Air Commerce Act of 1926 (44 Stat. pt. 2, pp. 568, 571):

"The head of any Government department or other independent establishment having jurisdiction over any airport or emergency landing field owned or operated by the United States may provide for the sale to any aircraft of fuel, oil, equipment, and supplies, and the furnishing to it of mechanical service, temporary shelter, and other assistance under such regulations as the head of the department or establishment may prescribe, but only if such action is by reason of an emergency necessary to the continuance of such aircraft on its course to the nearest airport operated by private enterprise. All such articles shall be sold and such assistance furnished at the fair market value prevailing locally as ascertained by the head of such department or establishment. All amounts received under this subdivision shall be covered into the Treasury; but that part of such amounts which, in the judgment of the head of the department or establishment, is equivalent to the cost of the fuel, oil, equipment, supplies, services, shelter, or other assistance so sold or furnished shall be credited to the appropriation from which such cost was paid, and the balance, if any, shall be credited to miscellaneous receipts."

وو

The Secretary of Commerce quotes the Bureau of Air Commerce to the effect that

"On or about May first of the current year, the War Department issued an order based upon its construction of the Air Commerce Act prohibiting the Air Corps from any longer repairing private and commercial airplanes or selling aircraft supplies or equipment to own

ers or operators of such aircraft in the Canal Zone or the Republic of Panama."

I have been furnished with no copy of any such order. On the contrary, the documents submitted to me indicate that you have no doubt of your authority to make such repairs and to sell such supplies and equipment "if such action is by reason of an emergency necessary to the continuance of such aircraft on its course to the nearest airport operated by private enterprise."

Concerning the limitation marked by the quoted words, the Bureau of Air Commerce suggest that "emergency,' which is the term primarily in issue, should be given the connotation of straitened or necessitous, both of which are to be found as synonymous with emergency in the Webster's New International Dictionary."

It is also apparent from the correspondence with your Department and with the other Departments mentioned that there are no adequate private facilities for the servicing of airplanes in the Republic of Panama, the Canal Zone and the Philippines; and, apparently, there is a view that this situation may in itself present an emergency.

The Circuit Court of Appeals for the Eighth Circuit, in United States v. Southern Pac. Co., 209 F. 562, 566, considered the definitions of Webster and other authorities, when seeking the meaning of the word "emergency" as used in a federal statute relating to operation of railroads. It pointed out that conditions consequent upon "usual causes" would not amount to emergencies; that even "sudden illness", though it might in the first place present an emergency, with lapse of time would cease to do so; and that each case must depend upon its own facts.

De Angelis v. Laino, 252 N. Y. S. 871, 885:

"The danger of fire hazard in the above schools has existed since the construction of the same. It is no worse now than it has been for many years past. The mere fact that the Strayer report focuses attention on it does not convert it into an emergency, at least, not as a matter of law. It, at least, points to the existence of an exigency 'where something helpful needs to be done at once; an emergency is more pressing, and naturally less common than an exigency.' Hurst v. City of Millersburg, 220 Ky. 108, 111, 294 S. W. 788, 789. The statute in question does not cover an exigency."

Brooklyn City R. Co. v. Whalen, 182 N. Y. S. 283, 286:

* * *

The

"The appellant contends that the maintenance of the bus lines is justified by emergency, and the inadequacy of the service of the street railway lines is put forward as creating the emergency. word "emergency" is defined as a sudden or unexpected occurrence or condition, calling for immediate action. This can hardly be applied to a permanent condition of inadequacy of service

* *

However, it would be highly impracticable to adhere too rigidly to the idea of suddenness or unexpectedness as applied to a state of disrepair in an airplane which, while in actual flight to some destination, lands at an army airport to seek assistance. At some time between the perhaps scarcely perceptible beginning of disrepair and the final breakdown of an airplane from such cause there is undoubtedly an emergency. Dictates both of humanity and of common sense repel the idea that Congress intended to withhold the aid provided by the statute until a breakdown should be imminent or intended that an air

plane in an admitted state of disrepair should be sent on its course in such condition or with only such limited adjustments and replacements as might, in someone's not infallible judgment, be sufficient to enable it to reach the nearest airport operated by private enterprise. Furthermore, this would be inconsistent with the intention professed in both the House and the Senate to foster safe flying by fit planes. (H. Rept. 572; S. Rept. 2, 69th Cong.)

In my opinion the conclusion is required, in order to give the statute reasonable operation and to avoid results obviously not intended, that the existence of a state of disrepair or other inappropriateness for safe flight, including lack or shortage of fuel, oil, equipment or supplies, apparent when assistance is requested, is sufficient to justify its rendition under the statute, provided that the need has reasonable relation to some actual and definite flight. Each case will depend largely upon its own peculiar facts. It is probable that some cases which it has been suggested ought to be provided for as a matter of policy will not come within the rule herein stated, but, in the absence of additional legislation, you are not authorized to sell supplies and equipment or to render services beyond the limitation expressed in the 1926 statute. Respectfully,

HOMER CUMMINGS.

ISSUANCE OF CERTIFICATES BY CIVIL AERONAUTICS AUTHORITY

[39 Op. A. G. 442]

MAY 28, 1940.

THE PRESIDENT.

MY DEAR MR. PRESIDENT: I have the honor to respond to your request of May 20 for my recommendation in connection with a letter of May 18 from the Chairman of the Civil Aeronautics Authority submitting to you a number of applications for certificates authorizing the applicants to engage in air transportation with the Territory of Alaska.

The pertinent sections of the Civil Aeronautics Act of 1938 (c. 601, 52 Stat. 973, 987, 1014) read as follows:

"SEC. 401. (b) Application for a certificate shall be made in writing to the Authority and shall be so verified, shall be in such form and contain such information, and shall be accompanied by such proof of service upon such interested persons, as the Authority shall by regulation require.

"(c) Upon the filing of any such application, the Authority shall give due notice thereof to the public by posting a notice of such application in the office of the secretary of the Authority and to such other persons as the Authority may by regulation determine. Any interested person may file with the Authority a protest or memorandum of opposition to or in support of the issuance of a certificate. Such application shall be set for public hearing, and the Authority shall dispose of such application as speedily as possible."

"SEC. 801. The issuance, denial, transfer, amendment, cancellation,

suspension, or revocation of, and the terms, conditions, and limitations contained in, any certificate authorizing an air carrier to engage in overseas or foreign air transportation, or air transportation between places in the same Territory or possession, or any permit issuable to any foreign air carrier under section 402, shall be subject to the approval of the President. Copies of all applications in respect of such certificates and permits shall be transmitted to the President by the Authority before hearing thereon, and all decisions thereon by the Authority shall be submitted to the President before publication thereof. This section shall not apply to the issuance or denial of any certificate issuable under section 401 (e) or any permit issuable under section 402 (c) or to the original terms, conditions, or limitations of any such certificate or permit." [Italics supplied.]

It appears that some of these applicants, operating as carriers when the act became effective, made application by telegraph within the prescribed 120 days under section 401 (e). The requirement of submission to the President before hearing is inapplicable to certificates issuable under this section and, therefore, these applications were posted and set for hearing (in Alaska) without such prior submission. When the examiner arrived in Alaska, after expiration of the 120 days, formal applications were filed with him and these, I am informed, in each instance included territory not covered by the original applications. Also five wholly new applications were received by him. The examiner proceeded to conduct hearings on all the applications but advised the carriers and their counsel that this was "subject to the possibility of a rehearing of each case.'

To the extent that these formal applications went beyond the scope of those previously made by telegraph, there was no compliance with section 401 (c). Notices of the applications were posted in Alaska, but this does not meet the requirement that such notices shall be posted in the office of the secretary of the Authority.

It is my opinion that the Civil Aeronautics Authority may now proceed to the issuance of certificates under section 401 (e) only to the extent covered by the original applications filed within 120 days. after approval of the act, understanding that as to them there was due compliance with the statute and regulations. Beyond this certificates are issuable only on applications submitted to the President under section 801 and set for hearing after posting and the giving of notice as provided for in section 401 (c). I advise that the applications be returned to the Civil Aeronautics Authority in order that they may indicate in connection with each the extent to which it is subject to the requirement concerning submission to the President before hearing.

Regarding the expressed wish of the Chairman to avoid duplication of expense by a rehearing, I am informed that the General Counsel of the Authority feels that this can be largely accomplished by having the rehearing in Washington with stipulation of facts previously developed and the taking of further testimony by deposition if found necessary.

Respectfully,

ROBERT H. JACKSON.

JURISDICTION ON PETITION FOR RECONSIDERATION AFTER DENIAL OF ISSUANCE OR RENEWAL OF AIRMAN CERTIFICATE

[40 Op. A. G. 11]

The SECRETARY OF COMMERCE.

DECEMBER 31, 1940.

MY DEAR MR. SECRETARY: In your letter of November 30, 1940, you request my opinion whether the duty of holding a hearing upon a petition for reconsideration of the denial of an application for the issuance or renewal of an airman certificate under section 602 (b) of the Civil Aeronautics Act of 1938 is vested in the Civil Aeronautics Board or in the Administrator of Civil Aeronautics. This question has arisen under Reorganization Plan No. III transferring to the Administrator of Civil Aeronautics certain functions formerly vested in the Civil Aeronautics Authority, and the question is whether the function of holding such hearings was transferred to the Administrator, or left in the Authority (now Civil Aeronautics Board).

Title V of the Civil Aeronautics Act of 1938 (c. 601, 52 Stat. 1005) deals with the subject of nationality and ownership of aircraft. It contains provisions for the registration of aircraft and the recordation of aircraft ownership, and authorizes the Authority to prescribe regulations on those subjects.

Title VI of the act, entitled "Civil Aeronautics Safety Regulation", empowers the Authority to prescribe minimum safety standards and authorizes the issuance of various forms of certificates, known as airman certificates, aircraft certificates (including type certificates, production certificates, and airworthiness certificates), air carrier operating certificates, air navigation facility ratings and air agency ratings. Section 609 authorizes the Authority, under certain conditions, to amend, suspend, and revoke any of the certificates referred to. Section 602 (b) of Title VI, relating to airman certificates, provides:

"Any person may file with the Authority an application for an airman certificate. If the Authority finds, after investigation, that such person possesses proper qualifications for, and is physically able to perform the duties pertaining to the position for which the airman certificate is sought, it shall issue such certificate, containing such terms, conditions, and limitations as to duration thereof, periodic or special examinations, tests of physical fitness, and other matters as the Authority may determine to be necessary to assure safety in air commerce. Any person whose application for the issuance or renewal of an airman certificate is denied may file with the Authority a petition for reconsideration, and the Authority shall thereupon assign such application for hearing at a place convenient to the applicant's place of residence or employment: Provided, That the Authority may, in its discretion, prohibit or restrict the issuance of airman certificates to aliens, or may make such issuance dependent on the terms of reciprocal agreements entered into with foreign governments.

Section 609 of title VI of the act provides:

"The Authority may, from time to time, reinspect any aircraft, aircraft engine, propeller, appliance, air navigation facility or air