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May 13, 1953


The opinion of the court was delivered by: HARTSHORNE

The crux of this case, or rather of the series of similar cases considered together by this Court, by agreement of counsel, *fn1" is the constitutionality of the material provisions of the New Jersey aviation statute. N.J.S.A. 6:2-7, as enacted in 1929, and re-enacted in 1946. *fn2"

As a result of the three airplane crashes December 16, 1951, January 22, 1952 and February 11, 1952, of planes owned by the American Airlines, the National Airlines and the Miami airlines, *fn3" at Elizabeth, New Jersey, a large number of cases were brought against such companies in this Court, not only by passengers in such planes, but for injuries to, and the death of, persons, and damage to property, on the land where such planes crashed. To these latter actions, the defendants National Airlines and American Airlines set up a series of defenses, covering substantially act of God, lack of negligence, and negligence of a third party, i.e., improper directions from Federal Civil Aeronautics Authority as to course and elevation in take off and landing.

 The above statute, so far as applicable, provides

 '6:2-7. Liability for injuries to person or property; lien on aircraft; mortgagees, vendors and trustees not deemed owners.

 As enacted in 1929, the above provisions were identic, save for the last sentence, presently immaterial, which was added in 1946. As enacted in 1929 it had first been promulgated by the National Conference of Commissioners on Uniform State Laws in 1922, as a proposed 'Uniform State Laws for Aeronautics', and adopted in whole or in part by upwards of twenty-four states, the particular provisions here in question having been adopted by at least ten states, including New Jersey. Nor is it material even as quasi legislative history, that, as defendants have noted, this act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1938. For it was withdrawn only to be replaced by other legislation drafted by that body, and this replacing legislation imposed substantially the same limited absolute liability 'regardless of negligence' as the act in question for 'bodily injuries * * * and for death resulting therefrom to individuals on the land and for damage within this state to property on the land'. In short, the Commissioners withdrew the act in question, not because of any doubt as to its constitutionality, but because they desired to amplify this self-same policy. *fn4"

 Since the above statute would bar the above defenses, plaintiffs in all cases covered by such statutory provisions, moved to strike such defenses, F.R.C.P. 12(f) or for summary interlocutory judgment, F.R.C.P. 56(d), 28 U.S.C.A. In answer to such motions, both defendant Airlines claimed such provisions of the statute to be unconstitutional, both as depriving them of their property without due process contrary to the Fourteenth Amendment of the United States Constitution *fn5" and to the provisions of the New Jersey Constitution, Art. I, par. 1, *fn6" and also as violative of the Interstate Commerce clause of the United States Constitutions. *fn7" The question before this Court is thus the constitutionality of the above provisions of the New Jersey statute.

 In determining the constitutionality of a legislation act, certain fundamental principles must be borne in mind: (a) the question is one, not of legislative policy, but of legislative power. Atchison, Topeka & Santa Fe R.R. v. Matthews, 1899, 174 U.S. 96, 19 S. Ct. 609, 43 L. Ed. 909. If the legislative branch of the state government has the power under the provisions of both the State and Federal Constitutions, to enact the statute in question, it is not for any court, a part of the judicial authority, co-equal with the legislative, to question such legislation or the wisdom of its exercise. Accordingly, the legislative authority has a wide discretion in the choice of policy to be applied in the governance of the citizenry. As long as this choice is supported by substantial reason and does not violate the fundamental requisites of fairness and justice, the courts can not declare it invalid, as a violation of due process, even though the soundness of the reasons for such choice seem to the courts quite open to debate. Nebbia v. People of State of New York, 1934, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940; Day Brite Lighting, Inc. v. State of Missouri, 1942, 342 U.S. 421, 423, 72 S. Ct. 405, 96 L. Ed. 469; Osborn v. Ozlin, 1940, 310 U.S. 53, 66. 60 S. Ct. 758, 84 L. Ed. 1074.

 (b) A statute is always presumed to be valid. Ex parte Young, 1908, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714; Nebbia v. People of State of N.Y., supra.

 (c) The police power of a state may 'prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.' Atchison, Topeka & Santa Fe R.R. v. Matthews, supra (174 U.S. 96, 19 S. Ct. 612). On the other hand, the due process clause simply means procedurally the 'law of the land', that is, not all procedural principles, but only those which are truly 'fundamental'. Twining v. State of New Jersey, 1908, 211 U.S. 78, 29 S. Ct., 14, 53 L. Ed. 97. Thus the interaction between the police power of a state and the due process clause of the Federal Constitution 'demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' Nebbia v. People of State of N.Y., supra (29) U.S. 502, 54 S. Ct. 510). The inquiry in this regard is simply whether the measure 'passes the bounds of reason and assumes the character of a merely arbitrary fiat.' Purity Extract etc. Co. v. Lynch, 1912, 226 U.S. 192, 204, 33 S. Ct. 44, 47, 57 L. Ed. 184. Nor may a court invalidate statutes because the court might think that they fail of their purpose, nor because 'it might seem to (the court) that they enforce an objectionable policy or inflict hardship in particular instances.' Bayside Fish Flour Co. v. Gentry, 1935, 297 U.S. 422, 56 S. Ct. 513, 516, 80 L. Ed. 772.

 (d) Since, in passing on the constitutionality of a legislative act, the Federal courts are vested with power to consider 'cases' and 'controversies' *fn8" they have no power to consider facts other than those involved in the case at bar. Thus the Federal courts are not at liberty to consider purely suppositious facts, presented merely arguendo by counsel, as occurred here, any more than they are authorized to render advisory opinions. People of State of California v. San Pablo, etc. Ry., 1893, 149 U.S. 308, 13 S. Ct. 876, 37 L. Ed. 747; Gorieb v. Fox, 1927, 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed. 1228.

 In the first place, a reading of the act demonstrates defendants' claim to be too broad. The statute does not make the owner absolutely liable to aircraft passengers, but only 'to persons or property on the land or water beneath.' In the next place, contributory negligence by plaintiff bars recovery. Again, the 'air man' or operator of the aircraft, if not the owner or lessee, is under no circumstances to be held absolutely liable. It is thus clear that the underlying purpose of the act was to place the cost of the dangers of the enterprise upon the industry itself,- a technique, the validity of which is well established by the nation-wide theory of workmen's compensation, for instance, *fn9" - rather than upon a completely innocent third party, who had never embarked upon such enterprise as had the passenger and the owner, and had no interest in or benefit therefrom. In short, a mere reading of the provisions in question demonstrates not their departure from, but their adoption of, valid legislative techniques, and prima facie at least, reasonable consideration of the varying status of the parties involved.

 We pass from this consideration of the statutory terms on their face to a closer scrutiny of the claim of defendant owners that 'where a statute imposes absolute liability for an activity which is not extra hazardous, such a statute is invalid as a deprivation of property without due process of law.' Taking this claim on its face, it is clearly incorrect. All we need do in this regard is again to turn our attention to the nation-wide policy of workmen's ...

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