87 F. Supp. 242

GOLDSBOROUGH, District Judge,
dissents.
GOLDSBOROUGH, District Judge (dissenting).
The complaint in this case states that the defendants, all of the members of the Civil Aeronautics Board, have entered into a conspiracy to unlawfully grant a permit allowing the Trans-Canada Airlines to maintain a line in competition with the plaintiff. But the Board acts only as a body advisory to the President, as hereinafter explained, so it could not grant the indicated permit. The proceeding, therefore, could probably be-considered as premature, but the judiciary has no power to question the motives of the Chief Executive in the performance of a statutory duty. That power, under the Constitution, devolves upon the Congress. There seems to he no practical reason, therefore, why the Court should not en-quire, at this time, into the constitutionality of the statute at issue in the controversy.
As the permit is one involving exclusively foreign Commerce, and as the statute, Civil Aeronautics Act of 1938, as amended, Sec. 402(b), 49 U.S.C.A. § 482 (b)and Sec. 801, 49 U.S.C.A. § 601, under its interpretation by the Supreme Court in the case of Chicago and Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, delegates plenary congressional power to the executive without any standards, limitations, or statutory controls whatever, does the statute violate Art, 1, Sec. 8 of the constitution, which states “Congress shall have Power * * * To regulate Commerce with foreign Nations,” or Art. 1, Sec. 1 of the Constitution, which states “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”, or does the statute violate both of the mentioned constitutional provisions? The majority of the Court, by implication, admits the necessity of Standards of Action in the conferring of congressional authority, in saying that standards of action are contained in Sec. 402(b), 49 U.S.C.A. § 482(b), of the Civil Aeronautics Act, overlooking the fact that the Supreme Court says in the Waterman case that Sec. 402(b), 49 U.S.C.A. § 482(b) and Sec. 801, 49 U.S.C.A. § 601, are to be read together, and that when so read the action is not the action of the Civil Aeronautics Board,-but the action of the President; that the action of the Board constitutes merely a recommendation to the President which the President can disregard in toto and proceed to act without -any standards, limitations or statutory control — that insofar as the provisions of Sec. 402(b), 49 U.S.C.A. § 482(b), and Sec. 801, 49 U.S.C.A. § 601 are concerned, the President is the Congress.
The only reason given iby the Supreme Court in holding delegation of Congressional power to the executive as within the ambit of the Constitution has been the reason of necessity. The Supreme Court has never said that a grant of Congressional authority to the executive should not be circumscribed by Congressional policy which would not hamper the executive in the legitimate exercise of congressional authority conferred upon him. Sec. 402(b), 49 U.S.C.A. § 482(b) is as follows: “The Board is empowered to issue such a permit if it finds that such carrier is fit, willing, and able properly to perform such air transportation and to conform to the provisions of this chapter and the rules, regulations, and requirements of the Board hereunder, and that such transportation will be in the public interest.”
It is perfectly evident that the standards set out in Sec. 402(b), 49 U.S.C.A. § 482 (b), would not hamper the executive in the legitimate exercise of the Congressional authority conferred upon him. But the Supreme Court, in the Waterman case, says the President is not bound by those standards, or any standards. Therefore there is no escape from the conclusion that Sec. 402(b), 49 U.S.C.A. § 482(b) and Sec. 801, 49 U.S.C.A. § 601 read together and construed as the Supreme Court says they must be, are unconstitutional.
The preliminary injunction should be continued pending action by the Supreme Court upon the appeal which it is presumed will be taken.
To maintain the proper constitutional balance between the Executive, the Legislative, and the Judicial branches of the Government is the enduring and unending obligation of the Federal Judiciary, and this maintenance is the glory of the Republic and the hope of a weary and bewildered world.

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