ROBERT DAVID WARD v. STATE OF MARYLAND
No. 87, September Term, 1976.
Court of Appeals of Maryland
Decided June 24, 1977
280 Md. 485
Malcolm W. Houston for appellant.
Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
For over a quarter of a century it has been a crime under the laws of Maryland “to operate an aircraft in the air, or on the ground or water, while under the influence of intoxicating liquor, narcotics, or other habit-forming drug, or, ... in a careless or reckless manner so as to endanger the life or property of another.”
The issue for decision is narrow in lineation but sweeping in implication. The great majority of the states have enacted legislation similar to the Maryland statute, some in identical language, making it a crime to operate an aircraft so as to endanger the person or property of another.3 If Ward‘s view
I
To put the issue for decision in perspective we recount what Ward did and what happened as a result.4 Ward was the holder of a valid student aircraft pilot license and medical certificate issued by the Federal Aviation Administration (FAA), pursuant to the applicable Federal Aviation Regulations (FAR). On the late afternoon of 18 May 1975 he made an instructional flight from Hyde‘s Airfield in Clinton, Prince George‘s County, Maryland. Thereafter, he and his instructor pilot enjoyed a quiet dinner complete with pre- and postprandial liquid refreshment in an amount sufficient, when Ward was examined some hours
Ward was tried in the District Court of Maryland in Prince George‘s County on a charge of operating an aircraft in a reckless manner, convicted, and appealed from the judgment entered to the Circuit Court for Prince George‘s County. Tried de novo by the judge in the circuit court, he was again found guilty. He was fined $500 and costs and sentenced to imprisonment for a term of 90 days. The prison sentence was suspended “upon special condition that he not operate an aircraft within the State for a period of one year from September 17, 1975.”6 Upon Ward‘s petition we issued a writ of certiorari to review the judgment of the Circuit Court for Prince George‘s County.
In a civil proceeding, the Federal Aviаtion Administration determined that Ward had violated seven Federal Aviation Regulations in his operation of the aircraft on 19 May 1975,
II
The opinion of the Court in Knapp v. Schweitzer, 357 U. S. 371, 78 S. Ct. 1302 (1958) (Frankfurter, J.), reminded, at 375, that the Constitution of the United States “is one of particular powers given to the National Government with the powers not so delegated reserved to the States or, in the case of limitations upon both governments, to the people. Except insofar as penal remеdies may be provided by Congress under the explicit authority to ‘make all Laws which shall be necessary and proper for carrying into Execution’ the other powers granted by Art. I, § 8, the bulk of authority to legislate on what may be compendiously described as criminal justice, which in other nations belongs to the cental government, is under our system the responsibility of the individual States.”7 It is apparent that the Constitution alone does not deny Maryland the power to enact the challenged statute. “While federal pre-emption of state statutes is, of course, ultimately a question under the Supremacy Clause, U. S. Const., Art. VI, cl. 2,8
The Supreme Court of the United States traced the path, “clearly laid out” by its prior decisions, which must be followed to answer this question. Jones v. Rath Packing Co., 430 U. S. 519, 525, 97 S. Ct. 1305, 1309 (1977). We summarize what was said. The first inquiry is whether Congress, pursuant to its power to regulate commerce, has prohibited state regulation in the area. That is, has Congress occupied the field to the exclusion of state action. “Where, as here, the field which Congress is said to have preempted has been traditionally occupied by the States, ... ‘[w]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. It is when Congress has “unmistakably ... ordained,” either explicitly by command in the statute‘s language, or implicitly by the statute‘s structure and purpose, that its enactments alone are to regulate a part of commerce, that state laws regulating that aspect of commerce must fall.
If Congress has not so occupied the field as to exclude all state action, inquiry turns to whether the federal and state laws conflict. “Congressional enactments that do not exclude all state legislation in the same field nevertheless overrule state laws with which they conflict.” Id. State and federal laws are so inconsistent that state law must give way when, under the circumstances of the particular case, the state‘s law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” In this determination, there is considered “the relationship between state and federal laws as they are interpreted and applied, not merely аs they are written.” Id.
Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution. To discover the boundaries we look to the federal statute itself, read in the light of its constitutional setting and its legislative history.
The intent to supersede the exercise by a state of its police power as to matters not covered by federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. Such intent is not to be implied unless the act of Congress is in actual conflict with the law of the state, and, as the Supreme Court has said, Jones v. Rath Packing Co., supra, 97 S. Ct. at 1309, an “actual conflict” occurs only when the state‘s law “‘stands as an obstacle to accomplishment and execution of the full purposes and objectives of Congress.” See Governor of Maryland v. Exxon Corp., 279 Md. 410, 370 A. 2d 1102, 1125. Furthermore, “[t]he application of the principle is strongly fortified where the state exercises its power to protect the lives and health of its people.” Kelly v. State of Washington, supra, 302 U. S. at 13.
III
The federal law which Ward urges preempts the Maryland statute is the
Subchapter III of the Federal Aviation Program sets out the organization of the Federal Aviation Administration and the powers and duties of its Administrator.
Subchapter VI of the Federal Aviation Program deals with safety regulation of civil aeronautics.
A Federal Aviation Regulation,
No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
It is clear that FAR 91.9 was made under the authority of subchapter III and subchapter VI. See 14 CFR at page 105.
Viоlation of FAR 91.9 is not a crime; no criminal sanctions are authorized.
Any person who knowingly and willfully violates any provision of this chapter (except subchapters III, V, VI, VII, and XII of this chapter), or any order, rule, or regulation issued by the Administrator or by the Board under any such provision or any term, condition, or limitation of any certificate or permit issued under subchapter IV of this chapter, for which no penalty is otherwise provided in this section or in section 1474 of this title, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be subject for the first offense to a fine of not more
than $500, and for any subsequent offense to a fine of not more than $2,000. If such violation is a continuation one, each day of such violation shall constitute a separate offense. (Emphasis added).
Subsections (b) through (p) provide penalties for specific acts, none of which includes careless or reckless operation of an aircraft. Subchapter IV and
As we have indicated, the conduct proscribed by FAR 91.9 is a crime under Maryland law. Penаlties authorized by Maryland Code (1957, 1968 Repl. Vol., 1974 Cum. Supp.)
IV
We have no difficulty whatever in deciding that Congress has not occupied the entire field of aeronautics by the
Maryland has expressly retained its police powers with respect to crimes related to aeronautics. It declared in its Aviation Act,
As is well known, the Federal Government does not provide a general criminal code for all crimes committed in the United States. That is the province of the various States. However, criminal codes of the States are at times supplemented by Federal Law in fields where the Federal Government has responsibilities.
We wish to emphasize that it is not our intent to divest the States of any jurisdiction they now have. This legislation merely seeks to give the Federal Government concurrent jurisdiction with the States in certain areas where it is felt that concurrent jurisdiction will contribute to the administration of justice and protect air commerce.
The Report asserted:
This, we want to make clear, does not preempt any State jurisdiction but wоuld only supplement it. Id., at 2565.
We reject Ward‘s suggestion that “the entire [Maryland Aviation] Act should be struck down.”
Having determined that Congress has not excluded all state action in the field of aeronautics or even in the more limited field of air safety, we center on
We are not persuaded that there is a conflict of constitutional dimension simply because the State court may prohibit a violator of its statute from operating an aircraft within Maryland for up to one year even though the violator holds a federal airman certificate which would permit him to operate an aircraft.
In no event shall this subsection be construed as warrant for the court or any other agency or person to take away, impound, hold or mark any federal airman or aircraft certificate, permit, rating or license....
In any event, we do not see how prohibiting, for a limited time, the operation of an aircraft within Maryland by a person who has been found guilty in a court of law of operating an aircraft in a careless or reckless manner so as to endanger the life or property of another could be said to stand as an obstacle to the Congressional purposes and objectives.
Ward suggests that the declaration in
We find that Maryland Code (1957, 1968 Repl. Vol., 1974 Cum. Supp.)
Judgment affirmed; costs to be paid by appellant.
Eldridge, J., concurring in part and dissenting in part:
“(b) Special. -- For any violation of § 10-1002 of this article, in addition to, or in lieu of, the penalties provided by subsection (a) of this section, or as a condition to the suspension of a sentence which may be imposed pursuant thereto, the court in its discretion may prohibit the violator from operating an aircraft within the State for such
period as it may determine but not to exceed one year. Violation of the duly imposed prohibition of the court may be treated as a separate offense under this section or as a contempt of court....”
I agree with the majority that, in light of the absence of federal criminal penalties for reckless operation of aircraft, the sanctions of fine and imprisonment provided in subsection (a) would not appear to be preempted by the
The Administrator of the Federal Aviation Administration (F.A.A.) is authorized to “issue airman certificates specifying the capacity in which the holders thereof are authorized to serve as airmen in connection with aircraft.”
It has been held that Congress has sought to insure the safety of civil aviation by extending federal safety regulations to virtually all civil aviation, including wholly intrastate flights. See Rosenhan v. United States, 131 F. 2d 932 (10th Cir. 1942), cert. denied, 318 U. S. 790, 63 S. Ct. 993, 87 L. Ed. 1156 (1943); United States v. Drumm, 55 F. Supp. 151 (D. Nev. 1944); see also Calkins, Federal-State Regulation of Aviation, 50 Va. L. Rev. 1386, 1395-1398 (1964). And in order to insure safety in civil aviation, Congress has dеlegated to the F.A.A. the responsibility of certifying pilots as competent to operate aircraft and has provided that the Administrator should revoke or suspend such certification when necessary in the interest of safety in air commerce.
Despite the fact that the F.A.A. has been delegated the authority by Congress to issue airman‘s certificates necessary to operate aircraft in civil aviation, the majority holds that a state may prohibit a holder of such a license to operate an aircraft. In my view, the conclusion is inescapable that a state statute which would prohibit that which is expressly permitted by a federal license, issued pursuant to federal law without qualification, is in direct and irreconcilable conflict with the federal law and therefore invalid under the supremacy clause. This was the conclusion reached by the Supreme Court in Sperry v. State of Florida, 373 U. S. 379, 83 S. Ct. 1322, 10 L.Ed.2d 428 (1963). There, the state of Florida sought to enjoin a nonlawyer, registered to practice before the United States Patent Office by the Commissioner of Patents, from counseling clients and preparing patent applications in Florida on the ground that such activities constituted the unauthorized practice of law in violation of state law. The Supreme Court noted that the states have “a substantial interest in regulating the practice of law within the State” and could, in the absence of federal legislation, prohibit
“The statute thus expressly permits the Commissioner to authorize practice before the Patent Office by non-lawyers, and the Commissioner has explicitly granted such authority. If the authorization is unqualified, then, by virtue of the Supremacy Clause, Florida may not deny to those failing to meet its own qualifications the right to perform the functions within the scope of the federal authority.... ‘No State law can hinder or obstruct the free use of a liсense granted under an act of Congress.’ Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 566, 14 L. Ed. 249.”
Cf. Huron Cement Co. v. Detroit, 362 U. S. 440, 447, 80 S. Ct. 813, 4 L.Ed.2d 852 (1960).
The fact that a state limitation on the exercise of the federally granted right is imposed only as a sanction incident to a conviction under an otherwise valid criminal statute does not alter this result under the Supremacy Clause. In Castle v. Hayes Freight Lines, 348 U. S. 61, 75 S. Ct. 191, 99 L. Ed. 68 (1954), an interstate motor carrier doing business under a certificate of convenience and necessity issued by the Interstate Commerce Commission pursuant to the
The Supreme Court in Castle, in an opinion by Mr. Justice Black, reasoned that the Federal Motor Carrier Act was a “comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce” greatly reducing the power of the states to regulate interstate carriers. 348 U. S. at 63. The Court pointed out that, although the states were free under the federal act to regulate the weight and distribution of loads carried in interstate trucks, nevertheless the federal government had the exclusive power to determine which carriers could operate in interstate commerce. Evidence of this exclusive power was found in the extensive conditions set forth in the act governing the issuance and revocаtion or suspension of certificates of necessity and convenience by the Interstate Commerce Commission. Noting that the suspension of a carrier‘s right to use state highways “is the equivalent of a partial suspension of its federally granted certificate,” and given the comprehensive federal procedures governing the issuance of certificates of convenience and necessity, the Supreme Court said that “it would be odd if a state could take action amounting to a suspension or revocation of an interstate carrier‘s commission-granted right to operate.” Id. at 64. In response to the contention that without the power to suspend a carrier‘s right to use state highways, the state could not effectively enforce otherwise valid regulatory statutes, the Supreme Court stated (id. at 64-65):
“It is urged that without pоwer to impose punishment by suspension states will be without appropriate remedies to enforce their laws against recalcitrant motor carriers. We are not persuaded, however, that the conventional forms of punishment are inadequate to protect states from
overweighted or improperly loaded motor trucks. Moreover, a Commission regulation requires motor carriers to abide by valid state highway regulations. And as previously pointed out, the Commission can revoke in whole or in part certificates of motor carriers which willfully refuse to comply with any lawful regulation of the Commission. If, therefore, motor carriers persistently and repeatedly violate the laws of a state, we know of no reason why the Commission may not protect the state‘s interest, either on the Commission‘s own initiative or on complaint of the state.”
I believe that Castle v. Hayes Freight Lines, supra, is controlling. The regulation of safety along highways has traditionally been viewed as an area of local concern, with the states being permitted great latitude in the absence of federal regulations. See South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed. 734 (1938). However, even in this area, the state cannot interfere with the exercise of a federal right. Aviation safety, on the other hand, is an area which, because of its nature, can only be adequately regulated through national control. As Mr. Justice Jackson said in Northwest Airlines v. State of Minnesota, 322 U. S. 292, 303, 64 S. Ct. 950, 88 L. Ed. 1283 (1944) (concurring opinion):
“Air as an element in which to navigate is even more inevitably federalized by the commerce clause than is navigable water. Local exactions and barriers to free transit in the air would neutralize its indifference to space and its conquest of time.
“Congress has recognized the national responsibility fоr 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.”
If the states are precluded from effectively revoking or suspending a federal license through enforcement of criminal statutes in an area such as highway safety, where extensive state regulation has historically been permitted, then surely they may not do so in an area requiring almost exclusive federal control.
The Federal Aviation Act, like the statutory scheme considered in Castle v. Hayes Freight Lines, supra, provides for a comprehensive federal licensing procedure governing the issuance and the revocation or suspension of the federal license. As there, because of its comprehensive nature, this regulation is exclusive. And as discussed above, this regulation extends to intrastate as well as interstate activities, unlike the regulatory scheme involved in Castle v. Hayes Freight Lines, supra. Given this exclusive and even more comprehensive federal regulation, I do not believe that the state, either directly or indirectly, as an incident to enforcement of valid regulatory statutes as in Castle v. Hayes Freight Lines, supra, may hinder the exercise of a right granted pursuant to a federal statute. Although the state does have an interest in protecting its citizens from the reckless operation of aircraft, this interest can be protected through the more traditional sanctions of fines and imprisonment as provided for in
For these reasons, I would hold that subsection (b) of
Judge Smith has authorized me to state that he joins in the views expressed herein.
Notes
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.