(concurring in part, dissenting in part).
I concur in the views expressed in the majority opinion respecting the construction of the War Labor Disputes Act, concluding as does the majority, that the complaint charges the defendants with participating . in collective action amounting to a strike. The majority opinion, however, referring to “the restricted limitation of the right to strike” contained in the Act, states that “In this situation we fajl to see any true constitutional question in this case.” The opinion relies, to some degree at least, on a purported analogy between Section 10 of the Railway Labor Act of 1926, 45 U.S.C.A. § 160, and Section 8 of the War Labor Disputes Act. I think that there is no analogy because no provision of the Railway Labor Act imposes sanctions on an employee in any wise comparable to those contained in Section 8 of the War Labor Disputes Act.
I think that serious constitutional questions may be involved in the instant case. It would be improper, however, for a court to attempt to determine such questions except in due course and on issues raised by the pleadings. Polk Co. v. Glover, 305 U.S. 5, 9-10, 59 S.Ct. 15, 83 L.Ed. 6; Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 211-213, 55 S.Ct. 187, 79 L.Ed. 281.
For these reasons I am of the opinion that the judgment of the court below dismissing the suit was in error.