(dissenting in part).
I concur in the Court’s disposition of the first objection set forth in complainants’ protest, but dissent from that part of the opinion which decides that the second objection raised by complainants in their protest may not be considered in this case. The ruling of the Court, as I read it, is that notwithstanding a protest includes a claim of invalidity which, if sustained, might have a bearing upon the rights and liabilities of a protestant, such claim may not be passed upon by the Administrator in any case where at the time the protest was filed the regulation was not open to the objection sought to be raised. The reasoning is that the primary purpose of the *843protest proceeding is to afford prospective relief against control imposed upon prices, that while in some cases the Administrator may grant retroactive relief, such relief is purely incidental and the Act does not contemplate that the Administrator “may be wholly diverted from his all important administrative task of price control. for the sole purpose of performing the unrelated judicial task of determining the effect of past regulations upon the rights and liabilities of private individuals.” The right to claim this so-called “incidental” relief is recognized by the Court if at the time the protest was filed the regulation was open to the objections raised, but this right apparently is held to be cut off if the Administrator removes the basis of objection before a protest is filed.
We are dealing in this case with a question of interpreting the protest provisions of the Emergency Price Control Act of 1942, as they were when complainants filed their protest. Complainants’ protest was filed before the enactment of the Stabilization Extension Act of 1944, by which the Emergency Price Control Act of 1942 was amended. The amending Act, as I understand my brethren agree, brought about no chatige in the nature of the protest proceeding ; but simply gave to District Coitrts and others in which enforcement actions were brought the right to authorize a defendant to file a complaint in this Court setting forth any objection found to be made in good faith and with respect to which the court should find there is reasonable and substantial excuse for the defendant’s failure to present such objection in the regular protest procedure. Such an added right obviously can have no bearing upon the proper interpretation of the protest procedure of the Emergency Price Control Act of 1942 prior to its amendment.
I do not agree with the interpretation of the Court that the protest procedure was created by Congress to provide relief against future controls of prices, to the exclusion of other rights and liabilities of individuals. Such rights and liabilities might be of importance equal to, if not greater than, the right to be relieved of price controls. Frequently a regulation has interfered with and has stricken down contracts affecting a protestant. In some instances, as in the case before us, enforcement proceedings, in the form of indictments for criminal violation of a regulation, suits to impose treble damages and suits for injunction, have been brought and are pending against a protestant. This Court is the only forum in which the invalidity of the regulation may be established. If not established in this Court, the possible effect of the invalidity of the regulation upon the rights and liabilities of the protestant may not be passed upon in other courts. The right to protest and obtain judicial review of regulations and orders issued by the Administrator was given for the benefit of individuals. I cannot believe Congress intended to give such benefit in respect only of future controls of prices and exclude the right to protest against past controls which might vitally affect rights and liabilities of individuals. I find nothing in the language of the Emergency Price Control Act of 1942 which so limits the protest and review procedure.
If it could be said without question that under the original Emergency Price Control Act of 1942 a judgment of invalidity would have had no significance in determining the rights and liabilities of a protestant, arising before the protest was filed, my position in this case might be different. But it seems to me a judgment of invalidity well might have affected, indeed in some instances might have determined, some of such rights and liabilities.1 As applied to the case before us it might have had such effect. I recognize that in an opinion of the United States Circuit Court of Appeals for the First Circuit, it was held that the invalidity of a regulation a defendant was charged with violating might not be decided in a criminal prosecution. Rottenberg v. United States, 1 Cir., 1943, 137 F.2d 850; affirmed sub nom. Yakus v. United States, 1944, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. But in that case the Court was not confronted with the question as to what effect a judgment of invalidity by the Emergency Court of Appeals would have if offered as a defense in a criminal case. The opinions of the Circuit Court of Appeals and the Supreme Court expressly left open the question of the right of a defend*844ant in a criminal case to defend on the .ground that the regulation is unconstitutional on its face. It seems that the same principle would control the case of a regulation invalid on its face and the case of a regulation duly invalidated by a judgment of this Court, and it might apply not only in criminal cases, but in proceedings for treble damages and injunctions, and perhaps in cases involving contracts affected by regulations. If not an absolute defense to a criminal case, a decision holding invalid a regulation a defendant was charged with violating might well have a decided influence upon the sentence to be imposed by the District Court. It.would seem there would be one degree of wrong committed where the regulation was found fair and equitable and was wilfully violated and another degree of wrong where the regulation was held by a court of competent jurisdiction to have been unfair and inequitable or arbitrarily or capriciously put into effect by the Administrator.
As I read the opinion of the Court, there is no question but that the right to protest exists except where it has been cut off by a change in the regulation before the protest is filed. The Court seems to indicate that thereafter a filing of a protest is “untimely”. I disagree with this construction of the Act for several reasons. First, as stated by this Court in Schanzer v. Bowles,2 there was no time limitation fixed by the Act upon the filing of a protest based on grounds arising, as in this case, more than sixty days after the issuance of a regulation. The majority opinion of the Court, however, has now introduced a new bar to complainants’ protest, a bar of which they had no notice from the language of the Act. This bar may be raised at any time, without any notice, by one of the parties to the litigation. Second, the construction completely obstructs the right of judicial review, in spite of the existence of substantial rights dependent upon such review.3 To me this is such a denial of a reasonable opportunity to be heard as to constitute an offense against the due process clause of the Constitution. Since the language of the Act did not require such an interpretation, I feel the Act should be construed so as to avoid this evil.
I have considered the practical aspects of the views expressed in this dissent. It may and probably will develop that the District Court will certify for our consideration the question in the case at bar, which the Court refuses to decide in the present proceeding. If so, complainants will not suffer except in the matter of additional cost, delay and the effort involved in bringing another suit. But in this case and in similar cases there is the hazard of the possible refusal of the District Court to authorize the filing of a complaint or to permit all objections to be heard. If complainants, as I feel they do, have the unqualified right to be heard in the Emergency Court of Appeals as to all their objections, they should not be subjected to such hazard. I, therefore, believe it important in principle to hold that this Court should now pass upon an objection to the Regulation, which seems of great importance to complainants and which in my judgment they have presented in accordance with authority granted by the Emergency Price Control Act of 1942.
Under the Act as it now reads it is clear that a judgment of invalidity would be a complete defense in an enforcement action. See. 204(e) (2). This provision, however, was added by the Stabilization Extension Act and, as previously noted, we are dealing here with an mterjjretation of the Act prior to its amendment by the Stabilization Extension Act
Em.App., 1944, 141 F.2d 262.
It is no answer to state, as the Court does, that the provisions of the Stabilization Extension Act provide some right of review in the enforcement action. Such review lies in the discretion of the judge before whom the enforcement action is brought; it is not available as a matter of right. But the important point is that it did not exist under the original Act with whose interpretation we are here concerned.