I concur in both the reasoning and result set out in Judge Babin’s opinion. In furtherance of the same the singular attitude taken by the Port Authority is worthy *600of consideration. The Authority contends that, in connection with the constitutionality of that portion of the statute which deals with the world trade center, it is not necessary at this time to consider anything beyond the concept of a world trade center. If the creation of such a center is a purpose not prohibited by the Constitution, it argues that the particular activities can be subjected to the test of constitutionality at some later time. To bolster this contention, the Authority asserts that it has no present plans in regard to the area and that the same must necessarily await negotiations with the Federal Government in regard to space for a customs house and other facilities, and that there is no present assurance of the extent to which the project will materialize, or that it will at all. Giving full credit to this argument, it follows that if the Authority finds the plan to be unfeasible due to lack of enthusiasm on the part of the Federal authorities or otherwise, it can abandon the project. It thereby does what it rightly says the courts cannot do—it makes the statute severable in the particular respect in which it is not severable and, by inaction, nullifies the legislative intent. This comes about by its present taking of the Hudson Tubes and its failure to proceed with the world trade center.
The foregoing interpretation by the Authority might not be particularly significant were it not for the fact, established in the majority opinion and nowhere contested, that now is the only time that an effectual determination can be made. The Authority does not dispute that following a decision upholding the constitutionality of the statute it can, without further application to any court, take the fee and level the buildings or otherwise dispose of them. A subsequent adjudication that the structures erected do not constitute functions permissible either under the statute or the Constitution will not restore the fee or replace the buildings. And if at that stage and in the face of such an adverse decision the Authority decides that further development would be impractical, the present owners would have lost their property despite the fact that no public purpose was served.