(dissenting).
I am sorry that I cannot agree with the majority opinion.
If the legislature delegates to an executive or administrative body authority to promulgate regulations or enter orders, provided a certain administrative finding or determination of existence of certain facts be made, the delegated authority fails in the absence of the requisite finding or determination. Mr. Chief Justice Hughes’ announcement in Panama Refining Co. v. Ryan, 293 U.S. 388, 409, at page 432, 55 S.Ct. 241, at page 253, 79 L.Ed. 446, is pertinent: “If the citizen is to be punished for the crime of violating a legislative order of an executive officer, or of a board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board, or commission, and, if that authority depends on determinations of fact, those determinations must be shown.” And Mr. Justice Brandeis, in United States v. Baltimore & O. R. Co., 293 U.S. 454, 55 S.Ct. 268, 272, 79 L.Ed. 587, in discussing certain authority of the Interstate Commerce Commission, made similar comment, saying: “The act conferred authority (on the Commission) to prescribe by rule specific devices, ,or changes in the equipment, only where these are required to remove ‘unnecessary peril to life or limb.’ * * * its finding to that effect is essential to the existence of authority to promulgate the rule; and, as Congress has made affirmative orders of the Commission subject to judicial review, * * * the order may be set aside unless it appears that the basic finding was made. * * * complete absence of ‘the basic or essential findings required to support the Commission’s order’ renders it void.” See also Wichita Railroad & Light Company v. Public Utilities Commission of State of Kansas et al., 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124, and Mahler et al. v. Eby, 264 U.S. 32, 44 S.Ct. 283, 288, 68 L.Ed. 549. In the latter case the court commented concerning a warrant of the Secretary of Labor that, inasmuch as it lacked the finding required by the Statute, it was invalid; that the defect went “to the existence of the power on which the proceeding rests.”
That the Congress intended by the amendment that no regulation, new or already existing, standardizing commodities should have validity until the requisite determination had been made seems obvious from the statement of the managers on the part of the House of Representatives in the Conference Report accompanying H. J. Res. 147 on July 8, 1943 (H. Rep. No. 697, 78th Cong. 1st Sess., p. 3) as follows: “The third clause requires that before any com*349modity may be standardized the Administrator must determine that no practicable alternative method exists for securing effective price control of the commodity.” The Administrator himself said in his statement of reasons involved in the issuance of Supplementary Order No. 64: “The clause recognizes the Administrator’s authority to establish standards whenever he determines ‘that no practicable alternative exists for securing effective price control with respect to’ a commodity”; and, “Read in conjunction with clause 3, this merely emphasizes that clause 4 forbids the Administrator to employ standards in price control when those standards fail to meet the stringent conditions of clause 4 unless he can bring his action within the exception to clause 3 by making a determination that no practicable alternative to standardization exists for securing effective price control.” He described such action as a condition with which he was required to comply before effectuating standardization.
But the Administrator now takes- the position that the unamended regulation possesses all the support necessary to a suit for triple damages or prosecution for criminal liability. He seems to admit, impliedly at least, that upon denial of a protest this court would have to make a judicial determination of invalidity. This is little short of complete confession by respondent of the propriety of the complaint. If an existing regulation is defective because of failure to make a finding and if such defect establishes invalidity in this court when the regulation is attacked here in a protest proceeding, I know of no reason why it should not likewise be held invalid under Section 204(e) (1), 50 U.S.C.A. Appendix § 924(e) (1), I can conceive of no justification for not declaring invalidity as of the time of the effectiveness of the amendment, lasting until the determination was made. Otherwise the Administrator might proceed to enforce the regulation in its original form, without making the determination required by the legislature. In such case Congress’s mandate would become entirely meaningless.
I think this reasoning should apply to existing regulations reflecting absence of the essential finding. The amendment having been enacted in an expressed desire to meet the objection that the Price Administrator had exceeded the limitations expressed in Section 2(h) of that Act, 50 U.S.C.A.Appendix, § 902(h), in issuing certain regulations already promulgated, it would seem clear that Congress thought that previous to the amendment the Administrator had been going too far, and ordered him to desist unless and until he made a certain determination.
From and after the effective date of the amendment, complainants, as well as others in the industry, had no fore-knowledge of what the Administrator might determine in this crucial respect, or indeed, whether he would ever make any determination of any character; yet the majority would require them to divine what the Administrator would do, and, if they did not foresee what was going to happen, to act at their peril with danger of subjecting themselves to criminal prosecution and a penalty of treble damages. This, I think, far beyond the intent of Congress; nor does it comport with my conception of due process of law.
To illustrate the extremes to which the majority opinion would carry us, let us assume that the Administrator had not made the essential determination for a year after the Congress enacted the requirement for a determination and yet had prosecuted complainants within 'that period for violation of the unamended regulation. Then, under the reasoning of my brethren they could be convicted and sentenced and execution of the sentence satisfied, all before the Administrator made the determination which Congress had mandatorily made essential to validity of the regulation. And if the regulation were valid for two months or three months or a year or two years without any determination it might just as logically always be valid. Under this reasoning, respondent need never make a determination, though Congress has directed him to do so.
Apparently the Administrator himself recognized the defect in his regulation resulting from the amendment and realized that he was required to make a determination, for he did so some two months after the amendment became law. But under the majority’s view he need never do so. Congress accomplished nothing by the amendment, if after its passage, a regulation could be enforced without compliance with the law.
Under United States v. Pepper Bros., 3 Cir., 142 F.2d 340, a regulation may be enforced until it is declared invalid by this court. That necessarily follows from the *350action of Congress withholding from the enforcement courts power to pass upon validity and vesting in this court sole jurisdiction to decide invalidity. But it does not follow that when proper application-is made to this court, we should refuse to declare a regulation which fails to comply with the law, invalid .as of the date of the amendment.
Even though the regulation remained valid for enforcement purposes in the district court, in view of that court’s lack of jurisdiction to pass upon validity, it seems ’to me that when complainants pursue the remedy which Congress has provided, it is our duty to enforce the legislative intent by declaring the regulation invalid, such invalidity reverting back to the time of 'the effective date of the amendment.
I would deny the motion to dismiss.