Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc.

PETITIONER:Evansville-Vanderburgh Airport Authority District
RESPONDENT:Delta Airlines, Inc.
LOCATION:U.S. Court of Appeals for the Second Circuit

DOCKET NO.: 70-99
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Indiana

CITATION: 405 US 707 (1972)
ARGUED: Feb 23, 1972 / Feb 24, 1972
DECIDED: Apr 19, 1972

ADVOCATES:
Howard P. Trockman – for Evansville-Vanderburgh Airport Authority Dist. and others
John K. Mallory, Jr. – for Delta Airlines, Inc., Northeast Airlines, Inc., and others
Marans. W. Michael Dunn
W. Michael Dunn – for New Hampshire Aeronautics Comm. and others

Facts of the case

Question

  • Oral Argument – February 24, 1972
  • Audio Transcription for Oral Argument – February 24, 1972 in Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc.

    Audio Transcription for Oral Argument – February 23, 1972 in Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc.

    Warren E. Burger:

    We’ll hear arguments next in 70-99, Evansville-Vanderburgh Airport Authority against Delta Airlines.

    Mr. Trockman, just so that you and Mr. Mallory can plan your time, we will probably complete your argument and perhaps if it’s feasible, open some phase of your friend’s argument.

    Howard P. Trockman:

    Yes, Your Honor.

    Mr. Chief Justice and may it please the Court.

    This is a review of a decision of the Indiana Supreme Court rendered on December 23, 1970, declaring the ordinance involved in this proceeding, unconstitutional under the Commerce Clause of the Constitution.

    The petitioner, Evansville-Vanderburgh Airport Authority District, is a regional airport.

    By that I mean, it lies in the Southwestern tip of Indiana and is utilized by not only the residents of Vanderburgh County Indiana, where it is located, but by many people residing outside of the area.

    The district was created by a state statute.

    It has both legislative and taxing powers and it was created specifically to operate Dress Regional Airport.

    As I stated, it is a primary airport which serves Illinois, Kentucky as well Southern Indiana residents.

    Approximately, 300,000 people move through this airport per year using commercial aircraft.

    40% of these users, as shown by the stipulated facts in this cause of Dress Airport reside outside the city

    .The yearly operating deficits to which I will elude later in this argument, are supported up until now only by tax levies on Vanderburgh county property owners.

    The stipulated facts which I refer to —

    Harry A. Blackmun:

    When you make that statement, don’t you charge landing fees?

    Howard P. Trockman:

    Yes, Your Honor, there are landing fees charged by contract to each of the commercial airlines serving the airport.

    Harry A. Blackmun:

    And you have rental space within the airport?

    Howard P. Trockman:

    We have rental space within the airport which is used on a per square foot basis by each of the airlines.

    During the course of this appeal, Your Honor and I have pointed this out in the reply brief, the charges which we are attempting to establish by this use and service charge ordinance were accepted from the contract of renewal of all of these lease agreements and therefore the question has been left open pending the outcome of this review.

    William H. Rehnquist:

    I take it that the deficit you referred is the failure of the kind of charges that justice Blackmun has referred to to cover the operating expenses of the airport?

    Howard P. Trockman:

    Exactly.

    Harry A. Blackmun:

    Isn’t it a disease that reflects all airports?

    Howard P. Trockman:

    I don’t think it reflects all airports, Mr. Justice Blackmun.

    I feel that some of the larger airports enjoy a very handsome revenue, but it is the type of airport that comes from Midwestern part of the United States such as the small or medium size hub-airports which we represent with a space and perplexed with this financial problem and this is what caused, I might add, the passage of the use and service charge ordinance which I will outline to you.

    Warren E. Burger:

    Is there anything to prevent from raising their landing fees except that it might drive the airlines out?

    Howard P. Trockman:

    There is nothing to prevent the raising of the landing fees, Mr. Chief Justice, but we do know that if the landing fees will raise that this type of raise and the levy would be passed along to the passenger in some way.

    Either the air fares would be increased, or the passengers would be paying for this charge in some manner.

    It’s obvious to me and I think it probably should be to the Court that whatever charges are paid by the airlines are passed along to the ultimate consumer and this of course, is the purpose of the use and service charge ordinance in this particular case.

    It is designed to be passed along to the consumer on a user basis, not on the basis of a property tax that just effects Vanderburgh county residents many of whom never use the airport.

    But when we have some 120,000 people residing outside the perimeter of Vanderburgh county using this airport and do not support it directly through any property tax, we feel that a much more equitable and broader base of support should be made and that’s the formulation of the user tax.

    Howard P. Trockman:

    The preamble of the ordinance in question recites the need for revenue to support existing and future facilities at the airport.

    Byron R. White:

    What are the other sources of revenue?

    Are there any other source of tax revenue for the airport?

    Howard P. Trockman:

    There are no other sources for tax revenue other than a Vanderburgh County property tax and add government tax.

    Byron R. White:

    Part of that is allocated to the airport?

    Howard P. Trockman:

    Yes the airport has up until this legislature, it had a $0.12 limitation on each $100 of accessed evaluation of property in Vanderburgh County.

    Byron R. White:

    So all of the residents (Inaudible)

    Howard P. Trockman:

    Yes.

    That’s correct.

    William H. Rehnquist:

    Is the airport district is larger than the city of Evansville itself?

    Howard P. Trockman:

    The airport district is coterminous in accordance with the statute with the boundary lines of Vanderburgh county.

    So that the ad valorem tax which is levied to support the deficit, to raise the deficit to keep the airport in existence, it’s levied only on the Vanderburgh county residents.

    Now recognizing the need for revenue to support the existing and future facilities, and by the way, I will refer later, to Exhibit D which is the part of the stipulation where the consultant’s report requires an estimated expenditure of local funds of $6.9 million of airport improvements.

    The airport board passed this ordinance on February 26, 1968.

    It notified the airlines of the passage of this ordinance in advance and notified it that it would become effective on July 1, 1968.

    As I stated, it was designed in part to deprave the cost of providing commercial airport facilities for use by commercial aircraft and commercial passengers.

    The ordinance establishes a $1 for enplaning passenger charge and as I said, it is on the passenger, to be collected by the airlines and remitted twice yearly.

    It applies without distinction whatsoever to whether the passenger travels in interstate or intrastate commerce, each passenger is treated the same.

    And the fact that these respondent airlines might subsequently refer to the fact that there are 88% more or less people who are traveling outside of the airport to locations beyond the state of Indiana is unimportant and I don’t think relevant to the proceeding as long as interstate and intrastate passengers are taxed or charged equally.

    Potter Stewart:

    The tax is imposed only on passenger whose trips originate at Dress Memorial Airport?

    Howard P. Trockman:

    That is correct, Your Honor and you will find a stipulation to the affect that enplaning passenger is by identity the deplaning passenger because most people who start one leg of a journey are either completing a journey which had its origin in Evansville or completing a journey which had its origin in low county other than Evansville.

    So it’s our position that by saying enplaning passenger, we are reaching all commercial airline passengers.

    Potter Stewart:

    But it’s a passenger whose — what is taxed is the passenger whose present trip originates in Evansville?

    Howard P. Trockman:

    That’s correct, regardless of his residence.

    Potter Stewart:

    Yes.

    William H. Rehnquist:

    You have a stipulation, do you not as to 145,000 versus a 146,000, very closely equivalent between (Inaudible)?

    Howard P. Trockman:

    Yes, the stipulation, I believe is a very per stipulation upon which we rely, found at page 53 of the appendix at the bottom, paragraph ten.

    I am sorry that is not the stipulation.

    I think it’s on 43. Anyway, there are some 146,000 enplaning passengers at Dress Memorial Airport in 1967 and this is pointed out in the stipulations.

    I cannot find the exact location, this is paragraph 12, page 46 of the appendix Your Honor.

    Howard P. Trockman:

    And there is a like number or substantially like number of deplaning passengers at the airport for the same period.

    Now for the first time in any use tax statute that’s been passed by any state or local municipality, the airlines were allowed by the terms of this ordinance, a 6% deduction for its administrative cost of collecting the passenger enplanement charge.

    I don’t know of any other statute, sales tax, gross income tax, highway use tax statutes, at least I have not found any to the state which gives to the airlines or gives to the motor carrier an allowance for this administrative charge and there are cases of course, which state that no such requirement can be made in the statute, but we have had but we have made such an allowance.

    The ordinance does provide that the proceeds are appropriated for the capital improvements of the airport.

    Now the question involved in this proceeding is of grave and vital concern of the preservation of state and local governing bodies to provide and improve facilities for use of commerce and to charge reasonably therefore.

    Thurgood Marshall:

    But didn’t the Supreme Court of Indiana just said it wasn’t using tax, because the only people they got taxed were only that flew the airplanes not those who used it.

    Howard P. Trockman:

    Yes, Your Honor there was a statement to this effect and I am prepared to respond to that statement.

    The use of the facilities of Dress Regional Airport, are enjoyed primarily by the commercial airline passengers.

    The stipulations involved in our Appendix are very replete, with statements to the effect that the existing facilities, at Dress Memorial Airport, Dress Regional Airport, would not be essential except for the required use by intrastate commerce, or by persons traveling in commercial aircraft, and I would like to refer in response to your question, to pages 53, 54 and 55 of the Appendix where these stipulations are shown.

    At Paragraph 10, found at the bottom of page 53 of the Appendix, the stipulation was and this was agreed to by the airlines that the terminal building itself would not be essential except for the required use by commercial airlines and their passengers.

    And also in reference to the terminal building, most of their facilities constituting the terminal building would likewise not be necessary except for the required use by commercial airlines and their passengers.

    In other words, it would not be required for noncommercial or private aviation.

    There is a stipulation also Your Honor to the effect that the runway lengths, the approach areas, ramp ways, taxi ways, the instrument approach lighting systems and the safety aids at the airport would not even be necessary to accommodate private or noncommercial aircraft.

    Thus they are provided for the use of commercial airlines, and the comparison which we have made which I think is very interesting at Paragraph 14, page 54 of the Appendix, is that in order to have a noncommercial private aviation type airport, there would only be required some two runways, possibly even of a grass strip of 3,500-4,000 feet which would cost some $20 or $25 per lineal foot to construct.

    But in order to accommodate commercial airlines and their aircraft and the passengers who travel on these aircraft, as shown at Paragraph 15, Page 55 of the stipulation, present construction requirements would require a $200 per lineal foot, expenditure.

    Making a comparison of the cost involved for noncommercial as opposed to commercial aviation, the two runways that I mentioned for private aircraft, would only cost some $2,00,000, 8,000 feet $25 per lineal foot.

    The required cost for commercial airlines, using these same runways which we now have at the airport some 16,000 feet of runways, is $3.2 million, and I submit, this is a substantial variation in cost in order to accommodate commercial airlines and their passengers, whether they be intrastate or interstate.

    Harry A. Blackmun:

    Of course, all that difference isn’t paid by the airport facility, is it?

    Howard P. Trockman:

    I don’t believe I understand your question Mr. Justice Blackmun.

    Harry A. Blackmun:

    Well, you are making a point of the difference in the cost between the runways, for example in a private noncommercial airport and that in the more of commercial one.

    Now am I not correct in my impression that most of these cost, bulk of them are supplied by Federal grants?

    Howard P. Trockman:

    No, they are not You Honor.

    Under the Aviation Facilities Act which was recently amended in 1970, most funds which could be contributed in granting an aid towards airport improvements, it is some 50% of the project cost.

    As a matter of fact in the Airport Facilities Act, there was a statement to the effect that substantial expansion of the local airports was needed to provide the necessary improvements to accommodate commercial aircraft, and commercial airlines.

    And in order to supply these improvements, our consultants came up with exhibit ‘D’ which is shown in the Appendix, some $6.9 million worth of expenditure, solely of local funds after deducting all possible federal grants and aid which would be available.

    In other words, the project would be of a cost substantially more expensive than $6.9 million.

    In order to comply with the needed improvements at this airport and this consultant’s report, Your Honor, was adopted by the Board of the Airport Authority formally.

    Harry A. Blackmun:

    Do you have state grants in (Inaudible)?

    Howard P. Trockman:

    We have state grounds —

    Harry A. Blackmun:

    State grants.

    Howard P. Trockman:

    No state grants are allotted to us. We work through the State Aeronautics Commission but to the present date, no funds have been allotted or received by the Evansville Regional Airport for the construction of funds.

    Harry A. Blackmun:

    In some states such funds are available from the states?

    Howard P. Trockman:

    Through some type of state wise tax levied, but not yet through the State of Indiana.

    Harry A. Blackmun:

    Now you referred to the 1970 statute, but this airport was constructed prior to 1970, I take it?

    Howard P. Trockman:

    It was constructed sometime before that.

    It was actually constructed and substantially recorded (ph) during the war in order to accommodate aircraft using the airport, who were using local military industry.

    But the funds for this airport, Your Honor, have primarily and substantially been provided at the cost and expense of Vanderburgh County residents and this is shown definitely by the stipulations.

    Harry A. Blackmun:

    When you say primarily and substantially, do you mean the vast majority of it?

    Howard P. Trockman:

    Yes, Your Honor.

    Harry A. Blackmun:

    This is the most unusual situation, is it not?

    Howard P. Trockman:

    Well, no it is not unusual.

    For instance when it comes to the terminal building up at least until recently, our recent expansion of the terminal building, did not result in any receipt to federal funds.

    We recently had a $980,000 bond issue which is also recited in the stipulations for the purpose of financing a construction of an addition to our terminal building.

    Federal grants and aid don’t reach terminal buildings or roadways, leading to the terminal building for instance.

    But federal grants and aid do reach runways and taxi ways to which federal grants will supply approximately 50% of the funds.

    But Congress nor the Federal Aviation Administration has not undertaken the burden of financing the improvements, at Dress Airport, that is on the local airport and until now on the local county residents.

    Byron R. White:

    As a practical matter how will airlines pay their way of — it actually be using the airport?

    As airlines they pay rent for their —

    Howard P. Trockman:

    They pay a square footage charge for the office spaces which they utilize and at most airports, including Dress, they pay an enplanement charge but a charge which is based up on the gross landing weight of a particular aircraft.

    Byron R. White:

    Now I suppose both charges passengers end up paying?

    Howard P. Trockman:

    There is no question about it.

    If they don’t, the airlines are operated with a substantial deficit as we do.

    Byron R. White:

    What as a practical matter keeps the airport authority from simply raising the landing fee so that it would be spread over everybody who is using that particular airline and that particular airport?

    Howard P. Trockman:

    Well, I think Your Honor this is what we have done by passing ordinance number 33, rather than funneling it through the airlines, by charging the airlines, a dollar for enplanement passenger fee, which we know ultimately will be passed along to the consumers, the commercial airline passenger, we have tax and has established use and service charge, for the airline passenger which is designed to be collected —

    Byron R. White:

    Why did you do it that way rather than just raising the landing fee?

    Howard P. Trockman:

    Well, at the time we did have a contract with the airlines which did specify a certain gross landing weight.

    This was one consideration, but the board’s explanation of this was that if there was going to be passed along to this consumer, the airport is going to be used on a user basis, if they want to have a more equitable use of the facilities and let the people pay for it according to the use then why not pass it along the passenger since they are going to pay for it anyway.

    Byron R. White:

    If you don’t — they tax the deplaning passengers?

    Howard P. Trockman:

    We do Mr. Justice White because the deplaning passenger also is an emplaning passenger.

    Byron R. White:

    You think he has either already paid it when he left or he is going to pay it when he does leave?

    Howard P. Trockman:

    That’s right.

    When I depart Dress Regional Airport for Washington DC, I am not going to be driving back normally, unless the weather does not permit me to fly.

    I am going to be returning to the Dress Regional Airport by aircraft.

    The same is true for anyone who is traveling to Evansville.

    They are going to board an airplane and to complete the second leg of their journey, after they arrive there and transact whatever business they might have.

    Byron R. White:

    But you don’t tax anybody who comes out (Inaudible)

    Howard P. Trockman:

    Well yes we do, and the stipulations do show that —

    Byron R. White:

    How do you tax them — you charge them the —

    Howard P. Trockman:

    Our airport concessioners pay us —

    Byron R. White:

    They pay you rent.

    Howard P. Trockman:

    — pay us rent and pay us on the basis of a gross percentage of the food prices charged to the consumers who eat in the restaurant for instance.

    The charge is 7.5% as shown by the stipulations.

    We get 7.5% for every item of food, and 12.5% for every item of drink, alcoholic beverage which is consumed on the premises.

    The airport parking is gauged on a similar method.

    We receive up to 80% for the parking fee.

    Byron R. White:

    But is this the lot of (Inaudible) building that isn’t (Inaudible), the cost has to be borne by the authority itself, I guess?

    Howard P. Trockman:

    That is correct.

    And lot of this is — we attempt to pass along to the airlines, but we have not yet had a fair return to support this facility.

    And if we are just going to support this facility in accordance with the way our consultants tell us that it needs to be supported by the construction of additional capital improvements, as is shown by the stipulations, we are going to run out of tax money to pay for these improvements and we need another method to with — we need the method of the enplanement service charge to help us finance these improvements.

    William H. Rehnquist:

    Mr. Trockman, I suppose there is some equity in favor of a dollar-a-head enplaning passenger taxes as opposed to just raising the landing fee, because your dollar-a-head-tax enables you to tax more heavily to Delta flight that comes in with 120 passengers on it than the Delta flight that comes in with 10 passengers on it.

    Howard P. Trockman:

    That’s correct.

    Theoretically, the weight of the aircraft and use of the facility is more with the use of more per passenger plane movements, and we feel that by having such a charge is much more equitable method of measuring our revenues and in arriving at an equitable charge.

    Harry A. Blackmun:

    Following through on the practicalities, landing fees and space rentals are matter primarily of negotiation with the airlines, are they not?

    Howard P. Trockman:

    That is correct.

    Harry A. Blackmun:

    And do I assume correctly that they are all joined together to resist your attempts to raise?

    Howard P. Trockman:

    No question about that.

    They have done so in the past.

    Harry A. Blackmun:

    And do I also assume correctly that they are threatening at times to overfly, if you get too high?

    Howard P. Trockman:

    To be fair, I don’t think the airlines have ever made such a statement.

    I know they have rebutted but they have never made such a statement.

    Warren E. Burger:

    But wouldn’t the CAB control that anyway?

    Howard P. Trockman:

    Well under the CAB regulations they are required under their certificated routes to fly between certain points.

    For instance, we have in our stipulations that some 88% of the people fly outside the airport to locations beyond the State of Indiana.

    Since the appeal of this case Allegheny for instance, has added another flight which has a flight terminating in Indianapolis, Indiana.

    So that the percentages are constantly going to be changing, and it maybe 88:12 one year, and it might 60:40 the next, but I think this aspect of it is immaterial so long as we reach both the implanting passengers who arrives and departs in Indianapolis or Evansville and the passenger who goes beyond the State of Indiana.

    Byron R. White:

    What about the privater aircraft that use —

    Howard P. Trockman:

    Private aircraft —

    Byron R. White:

    — just pay landing fee.

    Howard P. Trockman:

    — is used on the — we receive revenues from private aircraft indirectly through a fix based operators who maintain hanger facilities and repair facilities for these aircraft.

    Any gasoline which is sold to private aircraft at the airport, we receive $0.5 per gallon revenue, and this is a substantial amount of money.

    Byron R. White:

    So you are wrap up in the equivalent of any landing fees or enplaning fees in that —

    Howard P. Trockman:

    Unquestionably we do derive revenue, substantial revenue from our flowage fees.

    Harry A. Blackmun:

    Don’t you have a tie-down fees?

    Howard P. Trockman:

    Tie-down fees are actually charged by the fixed based operators.

    Now, they also pay on a square footage space contract which they have.

    But the actual revenue, the substantial revenue which we derive is through the flowage fee, that’s paid by the private commercial or private airline aircraft owners.

    But we submit that the use and service charge in question is in essence, no different from the federal excise tax of 8% which is levied by the federal government in order to adopt and ask their 50% share of some of the grants and aid for improvements which are made.

    And it’s certainly no different than the charges that are made by the airlines for the use of aircraft because it’s all designed and gauged by the use of the facilities given and offered to the passenger for its use.

    Article 1, Section 8, Clause 3 of the federal constitution, grants to Congress the power to regulate commerce.

    But we contend, and the cases show this, that it does not give it the exclusive power, only the power to regulate it in its entirety if it sees fit.

    That Congress has not shown fit to preclude the states from any reasonable regulations.

    And as I say the question involved in this proceeding is whether we can require Congress to pay its own way for the use of variable facilities which we are furnished to commerce and secondarily whether the dollar charge is reasonable.

    In a Braniff airlines case in 1954, the Civil Aeronautics Act of 1938 was called into question and this Court stated that this Act did not exclude or preempt the states from passing or enacting reasonable regulations and until an act of Congress overrides all conflicting legislation, the states can pass reasonable regulations for the use of its facilities.

    As I stated the Aviation Facilities Act has already made the demands on local government to improve its airport system.

    And the act further requires minimum standards that have to be a established by local airports, in order to serve as commercial airports.

    In the General Motors case, we feel that this is very pertinent on the subject decided in 1965 and quoted it in our opinion, it is not whether a state, or whether commerce can be taxed, it is how it can be taxed.

    Our first significant case, we feel, it was decided on the use of valuable facilities furnished to commerce was back in 1886 in the case of Huse versus Glover.

    This involved the tax for the use of artificially constructed navigational facilities.

    Although I am not going to quote extensively from this case, I think the rationale of this case requires as much today as it did it 1886.

    The Court said, how the highways of a state, whether on land or by water may be best improved is a matter for state determination.

    Howard P. Trockman:

    And it is not the purpose of the Commerce Clause, the Court goes on to say, to relive those engaged in interstate commerce of their just share of the state tax burden.

    This Court stated, and it is repeatedly held that the private inconvenience must yield to the public good.

    And significantly we say, that the only bridge that needs to be gapped between 1886 and 1972, the date that we argue this case, is the fact that the highways that the runways of our airport and indeed the highways of our airport.

    Byron R. White:

    Let’s assume that this dollar a head just went into the general revenue of the county or of the state, and wasn’t allocated for the use of (Inaudible)

    Howard P. Trockman:

    I think — I think Your Honor that would make a very large difference, but we have appropriated this —

    Byron R. White:

    You think you might be stuck with Crandall then?

    Howard P. Trockman:

    We might be stuck with Crandall, but Crandall as the respondents have rigorously argued is a mere departure tax, it’s a mere tax to leave the state.

    Byron R. White:

    Just a revenue —

    Howard P. Trockman:

    It’s not even based upon the use of facility.

    Byron R. White:

    That’s right.

    William H. Rehnquist:

    Even if you live on your own road to the tax.

    Howard P. Trockman:

    That is correct.

    Byron R. White:

    So that was just a wholly a revenue measure?

    Howard P. Trockman:

    That is correct.

    In almost every case that is found throughout the airlines’ briefs Your Honor that involves discrimination or national uniformity is either based upon the fact that interstate commerce is taxed is an unequal matter to that of interstate commerce.

    Local interstate users were not being taxed under these use tax statutes.

    Byron R. White:

    Or it’s been charged more than it is necessary to pay its way?

    Howard P. Trockman:

    That is correct.

    Now, we have in our stipulations, a statement to the effect, that the revenues to be derived by the maximum tax levies of Vanderburgh County, Indiana plus the revenue which we intend to derive from this use and service charge ordinance, will not even then be sufficient to complete our overall improvement program in order to comply with the consultant’s report and what we determine, the Aviation Facilities Act, demands that we make at the airport.

    Byron R. White:

    Well let’s — I suppose arguably you get the same answer even if this tax went into the general revenues of the county or the state and the county or the state was the one that had to make up the deficit of the airport?

    Howard P. Trockman:

    That is so, yes, but there are cases that I’ve read in the effect that such a tax is not constitutional, if it’s not appropriated for the purpose for providing the improvements needed and enjoyed by commerce.

    Byron R. White:

    So if the state could show that every year it appropriated more than the amount of the tax to the airport —

    Howard P. Trockman:

    That could be done, yes, unfortunately.

    Now, the Aero Mayflower case versus Railroad Commission which was decided in 1947, cited at page 28 of our brief, tells that even where a state has received federal aid, and this runs to a question that you asked me Mr. Justice Blackmun, that even where a state receives federal funds that a gross receipts tax on motor carriage was valid.

    And the Court went on to say that the state was not required to furnish facilities to commerce free of charge.

    And this holding has been upheld by this Court, has been repeated by this Court in the Aero Mayflower case, the Sprout case, the Bingaman case all of which we have cited in our briefs.

    So we say the incidence of the charge as the respondents argue is not only on the act of enplanement, but it is on the valuable use of airport facilities furnished at a great burden and expense to Vanderburgh County taxpayers.

    We submit Your Honor that the use and service charge of this nature is not only constitutional, but equitable in nature.

    Warren E. Burger:

    Thank You Mr. Trockman.

    We’ll not ask you to divide your arguments for a minute-and-half remaining.

    Warren E. Burger:

    We will resume in the morning.