Earl Warren: Number 60, Nick Jankovich and Paul Jankovich, co-partners doing business as Calumet Aviation Company, Petitioners versus Indiana Toll Road Commission. Mr. Dunau.
Bernard Dunau: May it please the Court. There are two questions in this case. First, is a zoning ordinance which restricts the height of structures on land surrounding an airport for the purpose of maintaining safe and unobstructed aerial approaches, a taking of property which requires compensation and is therefore invalid. Second -- the Federal Aviation Agency. That's precisely what they call them in there too. The second question is whether an independent and adequate state ground exists which precludes this Court from deciding whether airport zoning is a constitutional exercise of governmental power. Now this is what happened. In 1939, the City of Gary enacted an ordinance which declared that it needs shall acquire and operate an airport. In 1947, they got the land for the operation of this airport. They got it from the United States. The grant from the United States read that the land was given for an inconsideration of the development and operation of the demised premises as a public airport in perpetuity and for the benefit which shall accrue to the United States from the continued use of such property as of airport. There was to be automatic reversion of the title to the land to the United States if and in the event that the administrator of Civil Aeronautics or his successors determine that the premises have not been developed for airport purposes within a reasonable time or that after having been so developed, they seize to be used for airport purposes. Gary promised that the airport will be operated as a public airport on fair and reasonable terms and without unjust discrimination. In 1948, one year later, Gary adapted a master airport plan. A plan called for the construction of three runways, an east-west runway which has not been constructed. A northwest-southeast runway which has been constructed but is not involved in this proceeding and a north-south runway which has been constructed and is the runway, we are particularly concerned with. In the construction of this airport, federal funds were used as well as municipal funds. The federal funds were obtained as a result of a grant agreement between the Civil Aeronautics Administration, the predecessor of the F.A.A. and Gary, under the Federal Airport Act. Now, in September of '49, about the time that airport construction was to begin, the City of Gary enacted an airport zoning ordinance. This airport zoning ordinance which appears on the record of page 151, divided the land on which the airport was located as well as all surrounding land within a distance of two miles from the proposed end of the runway into four zones. The zones were a turning zone, an outer area approach zone, an inner area approach zone and a transition zone. In the turning zone, the height limitation was 150 feet. The same height limitation pertained in the outer area approach zone. A particular zone we are concerned with is the inner area approach zone and the ordinance read this way, inner area approach zone as indicated extending 6,000 feet from the end of the proposed runway not to exceed height greater than permitted of 40-to-1 slope. Now, a 40-to-1 slope means that for every 40 feet that you go out horizontally, you go out one -- you go out one foot vertically. If this is your end of your proposed runway, you go 40 feet this way, you then go one foot of that way. Your glide angle is this line between the zero point and the one foot point. Now this glide angle continues out on the same line until it reaches 100 of the 6,000 foot mark, of that point, you have 150 feet here and your glide angle on your inner area approach zone is this line in here. If you went out another 40 feet, you get two feet elevation, another 40 feet you get three feet and so on until you run the 6,000 feet at which point you reach 150 feet elevation which is the same elevation as the turning zone and the outer area approach zone. There is finally a transition zone with a height limit based on a 7:1 slope which means for seven horizontal feet, you go up one foot vertically from the edge of the inner area approach zone to a maximum height of 150 feet. Now, perhaps a rough diagram will explain this a little bit better. You have your runway here. This is your north-south runway. At this point here, this is the end of the proposed runway, you go out two miles. Then you make a circle with the two miles and this entire circle which goes around the airport and the land surrounding it is your turning zone. The height limitation throughout this entire zone is 150 feet. Now, at the end of the proposed runway, you go 500 feet this way. At the end of the two miles, you go 2,500 feet this way. This is your approached surface. It flares out from 500 feet here to 2,500 feet there. Now along this two-mile line, you have the 6,000 feet that goes up for your 40-to-1 glide slope. This portion in here is your inner area approach zone. This portion here is your outer area approach zone. Your height limit here is 150 feet as it is throughout the rest of the turning zone. Within this area here, your height limit runs from zero at the end of the proposed runway to 150 feet depending where along the 6,000 feet you area. There is finally this transition zone. This is a zone which is something like that, declared as a 7:1 off the edge of the approached area and it stops at the point that you reach 150 feet so that you have a truck in here. The truck is made up of your 40-to-1 right angle and your transition zone at the side of it and this is your area approach zone, the plane comes in for landing circles on the turning zone and from within -- going out of this way.
William J. Brennan, Jr.: What's the function of the transition zone?
Bernard Dunau: The transition zone is what its name says. It's a transition from the area approach zone to the turning zone. It's the area which tells you from your lower height limitation here to your 150 feet here. I'll try to explain this a little more later, but on this astray, your transition zone is the line, the 7-to-1 glide slope which indents from the area approach zone.
Earl Warren: Well then for all practical purposes, there are some portions of the transition zone upon which no buildings can be built, is that right?
Bernard Dunau: Some portion of the area approach zone and transition zone start with zero. Now, in this case, I get a little ahead of it. The boundary of a Grand Calumet -- the boundary of the southern part of the airport is the Grand Calumet River. At the point that this ordinance begins to pinch a property owner, it is on this side of the Grand Calumet River. On this side of the Grand Calumet River, before the petitioners move the river 175 feet, the maximum height limitation was 22 and one half feet. So at the point that this ordinance begins to pinch, you can build structures up to 22 and one half feet but not in excess of 22 and a half feet.
Earl Warren: Why do you start at the farthest side of the river?
Bernard Dunau: Of the river?
Earl Warren: Yes.
Bernard Dunau: I am -- this is something the record does not disclose. I am starting at the farthest side of the river on the assumption that the river edge on this side is the boundary line. If the river end --
Earl Warren: Boundary line of what?
Bernard Dunau: Separating the airport property. In other words --
Earl Warren: Yes, I see.
Bernard Dunau: This is the airport property.
Earl Warren: Oh yes.
Bernard Dunau: This is the other property on the other side, the river separated and I'm assuming that the people who do this ordinance said there wasn't going to be anybody building structures on the riverbed. So the point that it began to pinch -- adjacent property on this would be on this side of the riverbed.
Earl Warren: And that's 22 and one half feet?
Bernard Dunau: That's 22 and one half feet, right. Now, the ordinance provided that with respect to any existing structures at the time it was enacted, and with respect to any structures which could be completed within two years of the enactment of the ordinance, the zoning ordinance was to have no effect. If such structures were in excess of the height limitations, these were non-conforming uses and they would have to be tolerated. With respect to all other structures, they would be to comply with the height limitations except that this ordinance also provided for a variance. If the adjacent property owner could show particular hardship and that his building of a structure in excess of the height limit could be accommodated in keeping with the spirit and the purpose of the ordinance, a variance would be granted and this was the essential scheme of the ordinance. Now the reason for the ordinance as recited in the preamble is this; Airport hazards endanger the lives and property of the uses of the Gary Municipal Airport and the occupants of the land in its vicinity and in effect, the airport hazard, reduces the size of the area available for landing, taking off and maneuvering of aircraft thus tending to destroy or impair the utility of the airport and the public investments in it. The preamble went on to overcome these hazards. The Board of Aviation Commissioners of Gary adapted certain standards for the safe decent, landing and decent of aircraft for the proper and safe use of the airport and landing fields in respect to height and location of structures and use of land. And finally, the order that the preamble stated that the enactment of the ordinance was necessary in the interest of public health, public safety and general welfare to the end that creation or establishment of airport hazards be prevented to the extent possible by exercise of the police power. One year later, in 1950, the lessees here, the petitioners entered into a lease agreement with Gary through the Board of Aviation Commissioners to operate this airport for 20 years with an option to renew for another 20 years and they invested about $400,000 to create the facilities necessary for the operation of an airport. And this was the situation which prevailed until 1954 or 1955, some four or five years later when the respondent, the Indiana Toll Road Commission came on to see. The respondent acquired a right of way during 1954 and 1955 for the construction of a toll road. The part of the toll road we are concerned with runs in an east-west direction along the south boundary of the airport process. It was a plot with a modification under the present -- toll road obstructs the property of the airport. Now, instead of building this toll road on this side of the river edge, the people building the toll road in fact moved the riverbed over by 175 feet, the width of the river, built that toll road on the riverbed and moved the river on to the airport property. They not only moved the river on to the airport property and built their toll road on the riverbed. They elevated the toll road 30 feet above the ground level of the riverbed. The consequence was that at the point that they built their toll road; the height limitation was a little more than 18 feet. They went up 30 feet. They penetrated the protected airspace by 12 feet. Had they stayed on this side of the riverbed they still would have penetrated the airspace but by less. On this side of the riverbed had they gone up 30 feet, they would have penetrated the airspace by 8 and one half. The practical consequence of penetrating the airspace is that before they violated the ordinance, you could fly plane on to this runway which were heavier than 15,000 pounds. After you put this toll road up there, you could no longer fly plane safely weighing more than 15,000 pounds on to this runway, the consequences obviously, loss of business. As a result, the lessees having been injured, damaged in their business, wrote a suit for injunctive relief and for damages based upon the violation of the ordinance. Now, the particular issue which we are concerned with today, first was raised in the Trial court in the course of trying this case when the petitioners moved or offered the ordinance into evidence. At this point, when the petitioners offered the ordinance into evidence, the respondents objected to its admission, stating that the ordinance was a legal note. And I think it's important to quote at this point precisely what they stated because this is the only contention that was ever raised either at the Trial court, or in the court below in the Indiana Supreme Court. This is the only question which is here today. This is what they stated in objecting to the offer of the ordinance into evidence. The attempt to establish glide angles or slopes in controlling the height of structures and objects near an airport by zoning, is the unconstitutional taking of property without payment of compensation and is offensive to and violative of the Fifth and Fourteenth Amendments of the Constitution of the United States, and Article 1, Section 21 of the Constitution of the State of Indiana. The enactment of the purported airport zoning ordinance is an unlawful and unreasonable exercise of police powers by the City of Gary, in attempting through zoning, to do that which must be done under the city's right of eminent domain. The objection was overruled. The ordinance was received into evidence. At the end of plaintiff's case, the defendant respondent here, move for a finding in its favor and as read by the court below, the finding that it wanted in its favor was based on the same contention that it had made in objecting to the admission of the ordinance into evidence. After trial, the judgment for a $164,000 was rendered in favor of the lessees in a motion for a new trial. In hike verb-ah, the identical objection to the judgment was repeated as had been made to the ordinance -- to the admission of the ordinance in evidence.
Arthur J. Goldberg: In effect Mr. Dunau --
Bernard Dunau: Yes sir but more particularly or another reason that I want to stress is, is that the only on the merits, the only question before this court is the validity of this ordinance on its face and not as respondent would try to change this case in this Court into a question whether it was invalid by virtue of its specific application in the particular circumstances of this case. That has never been an issue. It has been injected into the case for the first time here. Now, when they got to the court below, to the Indian Supreme Court, they again restricted their attack to the same identical abstract attack on the face of the ordinance. And they introduced their argument in the brief below with the statement, Our attack on the constitutionality of the ordinance is the same one that we voiced when we objected to the admission of the ordinance into evidence. And --
Earl Warren: Mr. Dunau.
Bernard Dunau: Yes sir.
Earl Warren: I was wondering if -- if the particular effects of this case weren't an issue, how they contribute $160,000 on damages?
Bernard Dunau: Because what was an issue is whether the ordinance was violated. There was no question about that that was tried and that was proved. And all you have to prove to prove that the ordinance is violated was to show what the height limitation was at that point and to show that it has been breached. Another thing that was tried and litigated obviously was that the breach caused damage, and so a good part of the record went to showing anticipated profits, and what was a reasonable approximation of the loss and damages and that is what was litigated. There were others state issues but they are not material now.
Earl Warren: Is the airport in use or wasn't at that time of the trial?
Bernard Dunau: It was and still is in use. But the problem is that at present use, at least insofar as the record shows, when I say present. And that before this toll road came up, you could use it for landing aircraft 15,000 pounds or more after the toll road came up. You couldn't -- this was a diminished use of the airport, increased its usable -- usableness and the judgment reflects the damages as a consequence of that, the objection which the respondents made in the trial court and on the Indiana Supreme Court prevailed in the Indiana Supreme Court. The Indiana Supreme Court said that this ordinance is wholly void, invalid as in entirety. It cited this court's decisions in United States v. Causby and Griggs v. Allegheny for the conclusion that the reasonable and ordinary use of airspace above land is a property right which cannot be taken without the payment of compensation. It's cited this Court's decisions in Griggs and Pennsylvania Coal Company v. Mahon for its proposition that the taking or appropriating a private property by the government for a specific public use can be effective only if compensation is provided. It's cited this Court's decision in Euclid v. Ambler for the proposition that there was no need to exhaust the administrative remedies under the ordinance because the ordinance is invalid as an entirety, and it's cited this Court's decisions in Muglar v. Kansas for the proposition that it could look through the statement of policy in the ordinance and treat it as an artifice. And so it concluded it, that so long as you were zoning property which had a reasonable and ordinary use, you could not do that, you had to take it and pay for it. And that presents the question on the merits which we have to decide today.
Byron R. White: Once you relied on its own statute when its own decision is clear.
Bernard Dunau: It's cited there your honor.
Byron R. White: First?
Bernard Dunau: I don't know what significance it is whether one is cited first or another second. I could measure and show that the quotations from Griggs and Causby are bigger than any other part.
Byron R. White: Is there significance if they cited them at all?
Bernard Dunau: If I may, Your Honor I would -- I intend to come back to that. I think the question of the independent and adequate state remedy ground cannot be understood until we first know what the Federal Airport Act is about, and what airport zoning does. At that juncture, I think, I can more intelligently talk to the Court about whether there is an adequate and independent state ground. So if I may, I would like to defer that question. The technical foundation for all airport zoning in this country today is Technical Standard Order number NAT, promulgated by the Federal Aviation Agency which is in our brief as Appendix D at page 15A. This technical standard order is called a criteria for determining obstructions to air navigation. It measures the space around an airport which is necessary for safe and unobstructed flight. This astray is the physical representation of the obstruction criteria as prepared by the Federal Aviation Agency. This standard the -- have the obstruction criteria divide the land surrounding an airport at the land on the airport itself into four surfaces. You have first your horizontal surface, which is 150 feet from the approximate center of the airport, and the elevation of 150 feet is measured from the highest usable part of the land area. This horizontal surface of 150 feet is the same thing as the turning zone in the ordinance we have. Now, after the ordinance was enacted, the Federal Aviation Agency had a refinement on the standard that then existed, and they added a conical surface to this horizontal surface. The conical surface is at a 20-to-1 glide angle from the edge of a horizontal surface. Now the width of the horizontals -- or the distance from the center to the end of the horizontal surface and from the end of the horizontal surface to the end of the conical surface is based on the kind of airport you have will vary depending on what kind of airport you were dealing with. I think it varies from 12,000 feet for an intercontinental airport to something like 5,000 feet for a secondary or personal airport. This is called the pat of the obstruction criteria. This provides circling room for a plane to maneuver in order to get into a position to land or when it takes off to get out. Then you have the trough, the trough is the approach to surfaces. You have varying approach surfaces. In our case, we have a 40-to-1 glide slope. You can have a 20-to-1 glide slope, if you have a very small airport. You will have to have a 50-to-1 glide slope up to a certain distance and a 40-to-1 glide slope for the remainder of the distance. If you have an airport which is to take planes that can land on instruments. Again, at the base of the approached zone, you start with a particular width depending on what kind of a approach surface you're dealing with. It always flares out to another width at the end of it. And then you have your transition zone which takes you from your -- the edge of your approach surface, to the height of the adjacent turning zone or conical surface as the case may be. You got to have this clear airspace in order to operate an airport safely. If you have got obstructions intruding through here, you cannot fly an airplane safely. And you've got to have it through out here because you never know when engine will go out, or when an aircraft will be in trouble and it would need more than the minimum of that as ordinarily necessary for normal plane. Now of three ways -- there are three ways you can get to this protection. You can buy all the land. You can buy some of the land and get easements on other of it. You can buy all, or you can buy some. You can get easements on some, and you can zone for some. The way it actually works is you do all three. You buy some, you get easements for some and you zone some. The court below says, You cannot zone any and that is our question on the merits. Federal airport or Airport zoning, at the heart of it, is the Federal Airport Act. The Federal Airport Act is designed to effectuate a national airport plan. And the plan is to establish a nationwide system of public airports, adequate to meet present and future needs of civil aeronautics. And the way, Congress did this was via granting a program. It will give money to counties and municipalities to build airports, if those counties and municipalities will build them in conformity with federal standards. You comply with the federal standard, you get the money. You are unwilling to comply, you do not get the money. One of the standards to which the federal government exacts compliance in order to give financial aid is the elimination of safety hazards. The airport or the Federal Airport Act defines as an airport hazard, any structure or object of natural growth, located on or in the vicinity of a public airport, or any use of land near such airport which obstructs the airspace required for the flight of aircraft in landing or taking off at such airport, or is otherwise hazardous to such landing or taking off. When a sponsor which means a municipality or county that wants to build an airport submits a project application to the Federal Aviation Agency, it's required to conform to the standards prescribed by the administrator and amongst the standards it must conform to is safety of approaches. When the F.A.A. decides that the project is feasible and is willing to grant money, one of the assurance is it requires of the sponsor is this. The assurance in writing satisfactory to the administrator that the aerial approaches to such airport will be adequately cleared and protected by removing, lowering, relocating, marking or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards. And most particularly, in 1964 this year, Congress amended the Federal Airport Act to include as an additional specific assurance that there would be recourse to airport zoning as one of the means to eliminate or mitigate airport hazards and these are the specific words that Congress used, that the sponsor was to take appropriate action including the adoption of zoning laws that is that such appropriate action has been or will be taken to the extent reasonable to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal aircraft operations including landing and take off of aircraft? And the purpose I think was succinctly summarized by Senator Monroney who is the chairman of the Aviation Subcommittee of the Senate Commerce Committee when he said that the object of recourse to zoning was to be sure that you do not penetrate the airspace necessary to safe operation. And by that penetration, airports can be ruined by the construction of high-rise apartments, smokestacks, and similar buildings which encroach on the flight pattern? And one of the things that Congress explicitly has said is that there shall be airport zoning as one means of preventing this kind of impediment to safe operation. Now, when Congress wrote that in 1964, it was not saying anything new. It was confirming what the Federal Aviation Administration and the Civil Aeronautics Administration its predecessor had done from the time that regulation of this kind of a problem became a federal concern. From the beginning, every grant agreement between a sponsor and the federal government included as part of the promise made by the sponsor that the sponsor will either by the acquisition and retention of easements or other interests in or rights for the use of land or airspace or by the adoption and enforcement of zoning regulations prevent the construction, erection, alteration or growth of any structure tree or other object in the approach areas which would constitute an obstruction to air navigation according to the criteria or standards prescribed in Section A of Technical Standard Order N.A.T. this is this thing here so that the grant agreements from the beginning required assurance that there was going to be aerial protection or protection to the aerial approaches either to conform with T.S.O. N.A.T. or its predecessors. This was the scheme from the beginning. And from the beginning, the C.A.A. later the F.A.A. and the N.I.M.L.O., the National Institute of Municipal Law Officers promulgated model airport enabling acts and model ordinances to provide the machinery at the local level for effectuating this federal concern. The state airport Enabling Act provided the machinery which would enable the subunits of the state government to enact zoning ordinances. The model Airport Zoning Ordinance translated into zoning language, the compliance with this kind of protection for aerial approaches. Throughout --
Earl Warren: Can I ask if the government --
Bernard Dunau: Yes sir.
Earl Warren: -- prescribed the length of these runways.
Bernard Dunau: Yes sir. The Technical Standard Order itself specifies -- I'm sorry. When you said the length of the runways, I do not know that. I know they prescribed the length of the area -- of the approach surfaces from the end of the runways.
Earl Warren: Yes.
Bernard Dunau: I don't know that they prescribed the runway itself. I assume they must because there are certain minimum standards which are necessary in order to operate feasibly.
Earl Warren: What I was saying though, the airport for a large city would require one kind of transportation or probably for a smaller city, it would require another. And the runways need not be as long one or the other.
Bernard Dunau: That is entirely correct and I --
Earl Warren: Who determines that?
Bernard Dunau: I think the kind of an airport you build is the product of the cooperation above this -- the local government and the Federal Aviation Agency. Both have to get together and agree that there is a particular kind of an airport which is feasible. The Federal Government won't contribute money is to one which is not feasible in its view. The state government or the local government won't build which is not feasible from its point of view. So that the federal government is in on the planning of all these airports as I understand it because that is essential to the contribution of federal funds. Now, throughout the time that this became a problem, that is protection of aerial approaches, there have been expert studies in this field. There have been at least three federal studies. All three concluded that you've got to have airport zoning. And the idea was expressed about as well by a report of the House Committee on interstate and foreign commerce which we quote at page 30 to 31 of our brief. Hundreds of millions of dollars are being spent on airports. But unless an airport can be approached without encountering obstructions, the investment therein becomes valueless or the airport itself becomes a deathtrap. To protect passengers and flight crews, and to assure that airports can be used in connection with the defense of the nation in time of emergency, it is vital that there'll be adequate zoning. Unless a zoning is accomplished now, before airport approaches off further obstructed, the task will someday reach staggering proportions. Few steps are of such urgency, few steps are so essential to promote safety. The idea therefore I think can be summarized very quickly. You've got to have airport zoning. If you are going to have a safe airport, you've got to have airport zoning, if you're going to protect the investment in the airport, and you can't get safety or protection of investment by saying you can buy it all because you can't buy it all. As a practical matter, there isn't enough money to buy it all. Your only viable alternative is to have recourse to airport zoning or at least the significant part of the protection you need. Now, I do not understand that the respondents in this case in this Court could take any issue with anything I have set up until now. They appeared to agree that airport zoning is valid. They appear even to state that this ordinance on it face is valid. They changed their attack from an attack on the validity of airport zoning to a question as to whether its specific avocation in this case at this point is bad. Before going to their version of what this case is about, I want to say then briefly this. The court below thought that this ordinance was bad on its face, on its interpretation of what this court did in Causby and Griggs. In Causby and Griggs, this Court decided and only decided that frequent flights, low frequent flights over terrain which would drastically impair the usefulness of the land underneath those flights effectuated a taking for which compensation was required. If you were taking an easement you had to pay for it. We have no quarrel with those decisions. They do not stand in the way of what we are talking about at all. Airport zoning deals with the use of land by the land owner, the property owner which interferes with safe flight. Causby and Griggs deals with what -- what the fellow does is flying the plane which interferes with surface use of the land to protect against abuses by the fellow who flies the plain, you have Causby and Griggs. To protect against abuses by the fellow who's got the land, you have Airport Zoning. Now if you zone up to a particular height for the valid purpose of providing airport protection, you cannot build above that height but you can use the land below. Causby and Griggs says, if with respect to the use of that land below the height limitation, you are going too long and too often and you would pair drastically the use of that land, you're going to have to pay for the easement you acquire and you will have to pay for it. Airport zoning does not license interfering use of airspace. But the fact that you have zone land, to make it safe for planes to operate does not mean that you have got interfering over flights through that zone land. The two are separate. You zone, you get a safe airport. If in the operation of that airport, at any particular point you are having interfering over flights, you will pay under Causby and Griggs for those interfering over flights. That's all that Causby and Griggs says and it doesn't say a thing which begins to touch on the validity of airport zoning. As I said in this Court --
William J. Brennan, Jr.: You had to remove the building with -- make the airport -- the runway safely in taking off and landing. I suppose that's what you're taking.
Bernard Dunau: If you have -- well, yes sir. For example, instead of providing for nonconforming uses under this ordinance, they require the elimination of a building. I would assume that would be a taking that you have to compensate for them --
William J. Brennan, Jr.: By eliminating by zoning, the prospect of erecting that size of the building wouldn't be?
Bernard Dunau: That is correct because this is the same as all zoning everywhere. I cannot build outside of -- I've got a 25 lot -- 25 foot line on my lot. I can't build on that 25 feet. I've been zoned and I might like to use that property differently but I can't. All zoning whether it's airport or any other kind of zoning limits the use of property, diminishes the uses to which property can be put. That alone cannot be invalid unless our whole concept of zoning wherever is applied is invalid. And obviously that is not so. And obviously respondent doesn't think it so because it wants to change the question. It says we are not talking about the validity of this ordinance on its face. We are talking about a specific application of it. When you go down 18 feet in a highly industrialized area, you are going down so low that you are taking the property for which compensation is required. They cannot take this position in this Court. That issue is not here. The record as made never tendered such an issue. The cases tried never tried such an issue. The cases appealed never had such an issue. The record does not present or preserve that kind of a contention. And it wasn't in depth when the respondent in the Indiana courts restricted its attack to the validity of the ordinance on its face. Because under utterly clear Indiana law, if you're going to attack application, you must first seek a variance under the ordinance, and only after you have exhausted the remedies provided under the ordinance, may you then go into court and attack application. If you have not exhausted your remedies and you want to attack the ordinance, you are limited to where an attack from the ordinance on its face in its entirety. The people here had never sought a variance. The only defense they could make therefore was one that the ordinance was a legal nullity. So the record never presented the issue. Indiana law would not have allowed the presentation of the issue, had it been sought to be raised, the court below decided only the issue that the record presented and said this was a legal nullity, it would have reached the identical result whether you were talking about 18 feet, 28 feet or 58 feet. That was the rationality of its decision. It could not say it anymore plainly when it said this ordinance is wholly void. It's invalid as an entirety. This Court therefore is being asked to decide a question which is not here. The record doesn't present that Indiana law doesn't allow it. The Indiana Supreme Court and the trial court didn't decide it and I think that ends it in this case, in this Court. Now if it doesn't end it. If we have to consider invalid application, let's look at what we have to consider. Because their version of it is by no means even when this record was shown, a comprehensive version of a problem. First of all, they talk about a highly industrialized area. This area in here is not highly industrialized at all. The area here is highly industrialized and now here it is, and here it is but not here, if you're talking about application, this is where the highly industrialized area is supposed to be. What you have here is the problem of the river and (Inaudible) through here and you have the track of a railway. And at some place down in here, you also have residential construction. Now, I want to illustrate what happens if you try to turn a case into something that was not tried below. I thought when I looked at the Airport Zoning map which is on page 158 that there was at least a part of the inner area approach zone which residences were in fact constructed and I quote it because I looked at this map and I saw blocks of houses inscribed and I just thought these were existing structures. I am told there is not a blessed thing, nothing throughout this whole area here. It is swamp, it is sand, it is scrub oak, and you cannot build anything on it because you've got to have the kind of foundation which is not just economical to construct. Now if you try to consider a question of application when it hasn't been tried, you'll run into the precise trap that you look at a map, you think it shows buildings. It does show buildings but all it means is that somebody drew up a plan. That plan was drawn up long ago and has never been effectuated so far as the actual situation is concerned, this is all scrub oak and marsh and nothing useful. Now, I feel free to say this to this Court because it makes the precise point I want to make when you talk about application, you've got to try that issue. If you don't try it, you don't have the facts relevant to it. Even untried, we know that this is not highly industrialized. It is swamp here and maybe there's a residence down here on one version of (Inaudible). We're told that's 18 feet. It's not 18 feet. It's 22 and one half feet. It only becomes 18 feet if you spill the river over to somebody else's property. Now wherever this boundary line is, if it's on the edge of the river, if it's at the (Inaudible), wherever it's located, it surely doesn't license you to take that river and spill it over in somebody else's property. So, what --
Arthur J. Goldberg: Are you going to say totally the fact the state law out there?
Bernard Dunau: I've got it. Let me finish this. I didn't have a lot of time. What they're claiming is invalid application is a prohibition against building on land which requires you to spill the riverbed over to somebody else's land. The rest of it is in our brief with respect to invalid application. There just isn't even on their version of it enough to show on this record that there is any invalid application of the ordinance assuming this Court can even consider that question. Now, the independent and adequate statement, the court below says as its version of what constitutional law requires had the adjacent property owner chosen to erect flag poles, factory chimneys or tall buildings across the whole of its land and several times as high as its power line, it was within its rights not withstanding, it might have entirely prevent the landing of airplanes at the airport. The idea under the Federal Airport Act is precisely the opposite as summarized by Senator Monroney, your media airport zoning in order to prevent airports from being ruined by the construction of high rise apartments, smokestacks and similar buildings which encroach on the flight patterns. These two ideas can not stand together. The premise of the decision below and the premise of the Federal Airport Act are diametrically inconsistent furthermore.
Potter Stewart: Well, it could have been, you raised the state constitutional question though in your --
Bernard Dunau: We didn't raise anything. We were the plaintiffs sir.
Potter Stewart: I beg your pardon. Well, I mean somebody raised this.
Bernard Dunau: Somebody raised it, yes sir.
Potter Stewart: As far as we know, the Indiana Court has said that the federal rule that we adopt is a state rule. It's hard to tell isn't it?
Bernard Dunau: Whatever the court below said, this much is clear that it's decision cannot be an adequate state ground because its decision stands, it is in conflict with the Federal Airport Act, whether it took that decision as an adoption of federal law or it took it as an independent interpretation of state law --
Potter Stewart: Well, that's something else.
Bernard Dunau: Whichever way it took, it cannot be an adequate state ground and this is what I'm addressing myself to now because it's in conflict with the Federal Airport Act.
Potter Stewart: We had a case very similar to this, Minnesota Tea case.
Bernard Dunau: Yes sir.
Potter Stewart: And we couldn't tell whether this state was on the federal ground or on the state's constitutional ground, we remanded it. Are you acquainted with the aftermath of that?
Bernard Dunau: I understand that on the remand in that case, the state court held that it had been deciding it on a state ground.
Potter Stewart: Yes.
Bernard Dunau: The first point, I want to make however is that there is no point to a remand in this case to get clarification as to whether it's a state ground or a federal ground because if it's a state ground, it cannot stand as an adequate state ground because of conflict with the Federal Airport Act. So whatever ground was taken below whether it was a federal ground or a state ground. That ground cannot stand. One of the reasons it cannot stand is what I have said now, the notions of property that are adopted by the court below and that all the premise with the Federal Airport Act are diametrically inconsistent.
Arthur J. Goldberg: (Inaudible) preempted the area of state law with respect to whatever the states may consider to be not their zoning and is not their zoning.
Bernard Dunau: Well, I don't want to use the word preemption because for me, that has a more pervasive connotation on the word conflict. My purposes now, I am confining it to conflict that the standard adopted by the decision below is in conflict with the Federal Airport Act. I am not saying that there may not be standards adopted by a state which would not be compatible with the Federal Airport Act. As I understand preemption, there couldn't ever be such a thing. I am not taking that position. I am saying simply that with respect to the kind of position taken by the court below in this case, the total invalidation of Airport Zoning that is in conflict with the Federal Act.
Arthur J. Goldberg: As a matter of fact, that means that to build an airport in interstate and the public municipality in the states must bear every property in the zone --
Bernard Dunau: No, sir. It does not say that because this is the precise point that we are trying to make. And I'll jump ahead a little bit of my argument to make it. We think that the precise collision is illustrated by the fact that Indiana wants airport zoning. Twice its legislature has said, Airport Zoning is the policy of this state. It said it once when it enacted at Airport Enabling Act permitting the municipalities to adopt zoning ordinances. It is said at a second time when it adopted the Tall Structures Act which is, airport zoning or the entire state except for those municipalities which do not have it. So, Indiana has said through its legislative branch as a matter of state governmental policy, we want a zone. The Indiana Supreme Court says as a matter of the inherent attributes of property ownership, you cannot give effect to that state policy.
Arthur J. Goldberg: That's quite right. The Indiana Supreme Court said that (Inaudible)
Bernard Dunau: What is their constitution and fundamental law gets back to what is the judicial notion of what is inherent in property ownership.
Arthur J. Goldberg: So we have to accept the investigation of the Indiana Supreme Court and to let that constitution --
Bernard Dunau: Yes sir and their constitution says that it's inherently incompatible with property ownership to have airport zoning and that premise of the state constitution is in conflict with the Federal Airport Act which proceeds precisely on the other premise that it is entirely compatible with property ownership to have airport zoning that is the precise point of collision between the interpretation of the state constitution and the Federal Airport Act.
Potter Stewart: Of course, that part of the Federal Airport Act might violate the Federal Constitution too.
Bernard Dunau: And this is why, we are here on the merits. On the merits, we believe the question is whether under the Fourteenth Amendment of the United States Constitution, Airport Zoning is or is not invalid. We have tried to make an argument to show why it is invalid under the Fourteenth Amendment. If it is invalid under the state constitution as the Indiana Supreme Court says as a -- an interpretation of its own constitution, that premise of decision is inherently incompatible with the Federal Airport Act. What --
Byron R. White: The Indiana Court may have said airport zoning is unconstitutional under its state law but it didn't say that having properly constructed airports, there was anything wrong with having properly constructed airport, all they said was -- you shouldn't -- what they meant by saying zoning is unconstitutional, is it, you shouldn't zone without paying.
Bernard Dunau: Well, but that is precisely the point. You cannot zone without paying. That is the point of zoning, that you do not pay, that you get a restriction of property without paying. If you have to pay, then you are in the (Inaudible) of the Federal Airport Act.
Byron R. White: If you have to pay, you're in the teeth of the Federal Airport Act?
Bernard Dunau: Yes because the Federal Airport Act proceeds on the premise that with respect to a significant part of the protection which you are going to give to aerial approaches, you do not have to pay, you can zone. Now, if you have to pay, you are saying to Congress, your scheme is in a Act, you are proceeding on a premise which is not permitted to you under the basic law of either the federal or the state constitution. Now, let me try to illustrate this concretely because there is no question about --
Byron R. White: But all that means is that the federal money won't go into it.
Bernard Dunau: But if the federal money doesn't go into it, then the Federal Airport Act and the plan of having a national airport plan goes down the drain.
Byron R. White: Or I think they just don't have airports in the state then.
Bernard Dunau: Why?
Byron R. White: That's (Voice Overlap)
Bernard Dunau: If they don't have airports in the state, you are doing exactly what is not intended under the Federal Airport Act because the premise of the Federal Airport Act is that you will have airports in Indiana, in Alaska, in California, in Georgia, in every place in the 50 states of the United States. The premise is that there is power to zone. That is --
Byron R. White: They don't require any state to have an airport.
Bernard Dunau: I beg your pardon.
Byron R. White: They don't require any state to have an airport.
Bernard Dunau: The National Airport Plan is predicated on the assumption that people want airports, that they need federal money to get airports and that this is the way you're going to accomplish the federal purpose by conditioning financial aid on compliance with federal standards.
Byron R. White: (Inaudible) federal government and build it by paying -- by paying after these rights --
Bernard Dunau: They could do that Your Honor but when we talk that way --
Byron R. White: (Inaudible)
Bernard Dunau: No sir because when we talk that way, we're talking fictitiously. Local government doesn't have the money to build airports without the federal aid. Congress knew this and local government knows this. That's why the federal and the national airport plan is predicated on a grant made program because practically, it means that you can get federal standards achieved by conditioning financial aid on compliance with federal standards. Let me just quote this because I think this sets up our version of the basic conflict. The Senate report quoting with approval from the federal aviation administrator said this -- This power to zone land around airports reposes in the state and in its political subdivisions. If the airports fund lacks this authority because the airport is located outside the city limits, the neighboring city or county does not like the authority. If neighboring jurisdictions refuse to exercise this authority for the welfare of their own citizens, the state could act. We have reached the point where we should insist upon an acknowledgment that achieving compatible land use in the vicinity of airports is a governmental responsibility which must be assumed at some jurisdiction of level within the state, the premise of the Federal Airport Act is that power to zone exists, that you will get the power exercised by conditioning financial aid on it, the premise of the decision below is that -- that it does not exist that the whole federal scheme is based on a notion which cannot work at least in Indiana and it cannot work in Idaho because Idaho has now followed Indiana. It cannot work in California according to an intermediate appellate court decision. It cannot work in New Jersey. If you allow the states one by one, to say airport zoning is incompatible with our state constitution, you are telling Congress to build yourself another statute. This one is based on a premise which won't work.
Speaker: (Inaudible)
Bernard Dunau: Yes sir it could and our question here is always whether we're against it.
Earl Warren: Mr. Cox.
Hugh B. Cox: May it please the Court. I should like to deal straight away with the question of jurisdiction. It is plain that the Supreme Court of Indiana in this case decided a question of Indiana Constitutional law. Its opinion is at the very end of the record in this case, it starts on date -- page 208 if the Court cares to look at it. I think its page 210. You will see that the Court stated the question before it as including the constitutional question as including a question of Indiana Constitutional law. It then went ahead and cited the relevant provision of the Indiana Constitution. It cited in Indiana's statute about property rights in airspace. It cited some of its own decisions interpreting the Indiana Constitution. Now, I think there can be no doubt and I do not understand the petitioners to deny that the court below decided a question of Indiana Constitutional law. Now it is true that it also decided that this ordinance was invalid under the Fourteenth Amendment. But this Court long ago held that when a judgment of a state court rests on two grounds, one on state ground and one on Federal Constitutional ground --
Potter Stewart: Excuse me Mr. Cox. Perhaps -- perhaps I don't correctly understand. I thought what he was saying, assume that's what the Indiana State constitution said. And that's the correct construction. Nevertheless, what the Court held was that there's a conflict between the lack or what he's urging is, that it's a conflict between that interpretation in the state constitution and a federal statute which under the Supremacy Clause, the constitutional interpretation has to give way to it.
Hugh B. Cox: That is one of his arguments. The other argument is --
Potter Stewart: What about that one.
Hugh B. Cox: Well, it the Solicitor General in the footnote on page 2 of his brief dismissed that argument summarily as having no basis in the law but I will talk a little bit about it. That oral argument in the first place, I will take it on his basis as to what the court in Indiana held which is that it held broadly that all aircraft zoning ordinance, airport zoning ordinance, past, present and the future are invalid. We don't agree with that but let's take that as an assumption. Now what that argument really is and I don't believe that the counsel for petitioner can escape from, is this, and it seems to me an extraordinary argument. What he is saying is that if the constitution of Indiana had in it an explicit provision in this state, if you wish to establish safe approaches for airports, you must do it by some regulatory measure that gives land owners compensation if their rights are adversely affected. His argument is that that kind of an explicit constitutional provision would be invalid under the Supremacy Clause because of the National Airport Act. Now I say that's an extraordinary contention because in the first place, it involves a limitation self-imposed on a state which doesn't affect the civil liberties or the rights of anybody else. But apart from that, he is talking about a field in the statute, Federal Airports Act which does not in anyway conflict with that kind of a policy if the state wishes to adopt it. The Federal Airport Act simply does this; it sets out conditions which the local authorities must meet if they wish to obtain federal funds for the construction of airport. And one of those conditions is that the local authority should buy some appropriate means, provide for safe approaches to the airport.
William J. Brennan, Jr.: It doesn't have to be by zoning?
Hugh B. Cox: It doesn't have to be by zoning. It can be by condemnation or the acquisition of property rights or it maybe by zoning and I was struck by the fact that the amendment which counsel read to the Court which is made in 64 said that this should be done by appropriate means including zoning. Now, the Act specifically provides that federal funds maybe used for the acquisition of easements and airspace and for title to property that recognizes that state depending upon the choice it wishes to make may do this by acquisition of property interest. It may do it by zoning. But that statute does not prescribe any method which the state must follow. Now that in brief Mr. Justice Brennan is my answer to the Supremacy Clause.
William J. Brennan, Jr.: You said there was second proposition you thought (Voice Overlap)
Hugh B. Cox: Well I understand him to argue that before you ever get to the Supremacy Clause argument, that this is not an independent ground of decision because the court in Indiana cited some decisions of this Court as authorities and it did -- I was about to point out that the fact it decided the question under the Federal Constitution as well as the question under the state constitution does not in itself provide a basis for the exercise of this Court's jurisdiction because this Court is held many times if there are two grounds one, a state ground and one of federal ground and the state ground is sufficient to sustain the position below, this Court will not take jurisdiction that cases --
Byron R. White: But what if the view of the state constitution is somewhat influenced by federal consideration.
Hugh B. Cox: I think that makes no difference Mr. Justice White because this Court has said -- it said plainly in the National Tea case that the fact that the state court uses the decisions of this Court as persuasive authorities doesn't give the Court jurisdiction. Now the interesting case in that respect is the case that the City of New York against the Central Savings Bank which is a case stated in 306 U.S. where the Court of Appeals in New York had held a state statute unconstitutional on both state and the federal grounds, and in its opinion, it had decided and relied upon decisions of this Court and not only relied upon them. It had said that it attached great weight to those decisions and it went a little bit beyond that. It said that its decision that the statute was invalid under the New York Constitution necessarily followed from its decision that it was invalid under the Fourteenth Amendment and yet in that case, this Court denied a petition for certiorari and noted in the order that the denial was because a decision below rested on an adequate state ground. Now, if there is no doubt -- put it this way. There is nothing in the opinion of the Supreme Court of Indiana that even remotely suggests that it was constrained or controlled or coerced by any decisions of this Court. It cited those decisions together with its own decisions. It cited decisions of the Supreme Court of Washington and of the Supreme Court of New Jersey. So that this case is not like a case, it does not resemble a case in which the court below has said something which could suggest that it was constrained or dominated or controlled by decisions of this Court. In the National Tea case for example, the Supreme Court of Minnesota in its first opinion had said it believed it was under duty to follow the decisions of this Court. And the court -- Supreme Court of Indiana didn't say anything like that in this case and of course it didn't say anything that it resembles in any way what the New York Court said in the case that I referred to a moment ago.
Arthur J. Goldberg: (Inaudible)
Hugh B. Cox: That's right. That's my --
Arthur J. Goldberg: (Inaudible).
Hugh B. Cox: Quite true and my position is that the citing is treating them as persuasive authorities which is what this Court said that it could be done without raising a federal question. When I say constrained or controlled Mr. Justice Goldberg, I mean the language and opinion which indicates the state court believed that it had no choice but to decide the question in a way that the decisions of this Court indicated that it should. I think it was treating those decisions as it treated the other materials and the opinion as authority. Now how much weight it gave them and you can't tell but it doesn't -- to my standard, it makes no difference on how much weight it gives them. So long as it was treating them as authorities and not as controlling factors that it had to follow. I find nothing in the opinion that would suggest the slightest to be that -- that there was any need for clarification on that point which was the reason that the court -- this Court in the National Tea case sent the case back to the Supreme Court of Minnesota to make sure that it was free of the compulsion of this Court's opinion. And in that case, the Supreme Court of Minnesota said, yes, we are free and decided the same way on state grounds. Now that I think deals with the question of whether this Court should take jurisdiction of this case. It is our position that the decision below rests on an adequate and independent state ground and that they should be dismissed. Now if the Court doesn't agree with us on that, we then reach the question of the merits case that is whether this ordinance is invalid as applied to my client's property. In the interest of time, I propose to rather truncate my discussion at that point but I should like to say two or three things about it. In the first place, this as applied to the existing property of my client, this ordinance imposes a height limit of 18 feet. The counsel of the other side, says it's 22, it doesn't make too much difference to me but the fact is that this toll road which they say violates the ordinance is now built in a place where the height limit is 18 feet.
Arthur J. Goldberg: This toll road was privately owned or just the state.
Hugh B. Cox: It's owned by the Indiana Toll Road Commission.
Arthur J. Goldberg: (Inaudible)
Hugh B. Cox: There is a creature of the legislature of Indiana.
Earl Warren: It's a public authority.
Hugh B. Cox: Public authority, yes, quite so Mr. Chief Justice.
Arthur J. Goldberg: (Inaudible)
Hugh B. Cox: Well this is a very odd case Mr. Justice Goldberg when you say that, I have to say it to you that this toll road was built where it is and if the elevation is built in relation to the airport, by my client under an agreement with the City of Gary that if Gary agrees that this toll road could be built right where it is and that the elevation is in relation to the highway and my client paid the city and connection with that settlement for that another covenants and agreements and made in -- obligated itself to pay a $1,500,000.
Arthur J. Goldberg: This is after Gary that leads to the airport.
Hugh B. Cox: So after Gary, it leads to the airport. And now, the issue here is whether my client must pay another $160,000 by virtue of this lease that was made to the petitioners in this case.
Potter Stewart: Maybe the appellants should be suing Gary?
Hugh B. Cox: I think they should be suing Gary, they should not be suing in my opinion my clients but -- and then I ask the Court to bear in mind two particular -- I'm not going to try to take your time to deal with all these points but in connection with this matter of variance, and your duty to exhaust your administrative remedies, I asked the Court to remember that my client did not come into Court attacking this ordinance. It did not take the initiative. My client raised the question of validity of the ordinance simply because it was sued as the matter of raising it as a defense we're not -- we didn't take -- we didn't -- we're not attacking the ordinance in the sense of having gone to court to attack it, we had no reason suppose we had to get a variance. So we had agreed we could build a road there. We built it there and then when were sued, of course, -- my client raised the invalidity of the ordinance as a defense. What I wish to -- I wish to say just two or three things more about the merits and then I shall submit that point to the Court on our brief which discusses it but I would like to point out that it seems to me that when you impose this 18 -- 18 foot height limitation or a 24 height foot limitation on land that it's no and this what the court -- this Court said in the Causby case. There's no difference and if you build an approach to a bridge over my client's land at 18 feet and ran traffic over that bridge because that's what this is about and take all of the airspace above 18 feet and use it for the passage of airplanes. Indeed, in the court below, the petitioners told the Supreme Court in Indiana, page 24 in their brief, that by reason of this zoning ordinance and the lease they had from the city, they had an easement in the airspace over my client's land. Now, I submit that if they had an easement that could only be obtained by taking it from my client and that it was a constitutional taking and it could not be achieved without the payment of compensation. Of that, I think in very abbreviated form is the essence of our case on the merits. I do not understand the distinction that the petitioners try to make between this case in the Causby and the Griggs cases. In those cases, the Court -- this Court held that there was a taking because intrusion into the airspace interfered with the use and enjoyment of the land. In this case, the 18 or 22 foot height limitation directly interferes with the use and enjoyment of the land because it prohibits the owner of the land from putting any structures on it that exceed 18 feet, from growing any trees on it that exceed 18 feet. It prohibits a variety of proper and normal uses of that land. I do not understand how this case can be on the taking point can be distinguished from Causby and from Griggs. Now there's just one more thing I should like to say, though it seems to me perhaps unnecessary. The petitioner has made something of the point which I don't completely understand but I want to try to deal with and that is that we are not entitled to say in this Court that this ordinance is invalid as applied to our property because he says we -- apparently, he says or argues that we attack it in the court below on the ground that it was invalid as to everybody which is a proposition that I find a little difficult to understand because the only thing that was ever involved in this litigation was the application of the ordinance to my client's property. My client was worried about somebody whose property was backed three or four miles. He's worried about his own property. But I think it's important to make it clear that this point was before the Supreme Court of Indiana. The brief which my client filed in the Supreme Court of Indiana, it commented on the same exhibits which the counsel for the petitioner talked about when he said, we objected to their admission because he said the court -- the ordinance was invalid. At page 248 of the brief that my client filed in the Supreme Court of Indiana, it referred to these exhibits and said this -- and these are exhibits that show the ordinance. Since --
Speaker: Page 248?
Hugh B. Cox: This is 248 of the brief in the court below.
Speaker: (Inaudible)
Hugh B. Cox: Yes, it was quite a brief. They have a furious practice in Indiana. The brief includes everything apparently, the record and transcript. This is a reference to the ordinance and to this map that was attached to the ordinance. And my client said this to the Supreme Court of Indiana, Since they were invalid and unconstitutional as applied to appellant, they were inadmissible and it was a reversible error to admit them. Now that's the question we put to the Supreme Court of Indiana, and the Supreme Court of Indiana understood it because at page 210 of the record in this case, it stated, the constitutional contention that my client had made to it and it stated it in this terms. We consider of only appellant's second intention, namely that the provisions of the ordinance relied upon by appellees was unconstitutional and that it purported to appropriate without compensation. Now this is the important part -- The reasonable and ordinary use of the property on which appellant constructed the toll road. They're only litigating about that property, we weren't litigating in abstract or about other property. This was -- we made this contention in the court below. And even if we hadn't, I should suppose that the normal course of constitutional adjudication this Court would welcome an advocate who presented the narrower constitutional question rather than a broad one, because this is simply allowed smaller constitutional question. It might be comprehended within a larger question about the invalidity of the ordinance applied in some general way. But that is not what concerns my client. Now I think in the interest of time, I shall conclude. I see that my time is up.
Earl Warren: That's alright. Mr. Dunau.
Bernard Dunau: May it please the Court. I've tried at the outset to say that this was not an adequate state ground and I did not direct myself to our alternative position that it was not an independent state ground. I want to talk about that for a moment. Mr. Cox has said, he cannot see how this case can be distinguished from Causby and Griggs, but the court below used Causby and Griggs as the foundation of its proceeding. How can you say, how can anyone say that there is an independent state ground when the foundation for it is this court's decisions in Causby and Griggs? It will not do to talk about the court decisions as persuasive authorities when the question before the State Court is whether the action taken is invalid under its own constitution and under the Fourteenth Amendment of the United States Constitution. The decisions of this Court under the Fourteenth Amendment are not persuasive authorities. They are controlling, they are compelling. A state court has nothing to do but to follow them. When the State Supreme Court decided this case, on alternative contentions of Federal and State Constitution, and had read this court's decisions and we are told they cannot be distinguished, it had to follow what this Court said. And if it had to follow what this Court said, it cannot be an independent state ground. Furthermore, the decision in this case explicitly relies on the federal scheme. The Court explicitly states that its conclusion is consistent with the federal scheme. It totally misconceives the federal scheme. Now you take this, you substitute a right reading of Causby and Griggs for the wrong reading of the court below. You substitute a right notion of the federal -- or the federal scheme for a wrong notion of the federal scheme and you cannot get this result from the court below if reason has anything to do with adjudication. How can the result be independent if it is premised and predicated on federal law? Now, two very minor points; we are told that the contention was raised that this question of application was raised and an isolated sentence is quoted at page 248, "Since they were invalid and unconstitutional as applied to appellant, and the word applied is taken as being the whole to do on how you get a particular issue raised." The word applied used on that page of the brief has nothing to do with application of the ordinance to the property at that point because the Indiana Toll Road Commission was also taking the position and this is an exclusive state ground which the court below did not reach that because it was the Indiana Toll Road Commission, a body politic, the ordinance did not apply to it and that is the only sense at which it ever use the word applied. Finally, it says, we had a settlement agreement at the elevation and location, this record will not support that statement with the settlement agreement even if it's properly before this Court does not approve the elevation or the location.
Earl Warren: Thank you gentlemen.