(dissenting).
The majority opinion results in a final judgment dismissing the complaint. I find myself unable to concur in the reasoning thereof or in the result arrived at.
It appears on the face of the complaint that each of the plaintiffs is engaged in the business of buying and selling meats at wholesale in the northern part of the State of New Jersey. They complain that the enforcement of the Emergency Control Act of 1942, as amended, injuriously affects them in the operation of their respective businesses and has resulted in indictments being returned against them for alleged violations thereof. They assert that sections 204(c) and (d) of the aforesaid Act leaves the District Court in which they are indicted without jurisdiction to pass upon the legal sufficiency of the charges contained in the indictments, and this they contend results in a deprivation of their respective constitutional rights. They seek equitable relief by way of a preliminary injunction out of this court to stay the United States Attorney from proceeding with the trials under the indictments until the final hearing of this cause.
The motion to dismiss is based, among other things, upon the assertion that to grant the relief sought this court must violate the express limitations placed upon its jurisdiction by virtue of Section 204(d) of the Emergency Control Act.
The pertinent sentences of Section 204 (d) read as follows: “The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2 (section 902 of this Appendix), of any price schedule effective in accordance with the provisions of section 206 (section 926 of this Appendix), and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision.”
It is clear that the first sentence above quoted intends to lodge exclusive jurisdiction in the Emergency Court of Appeals in the first instance to pass upon the “validity” of the regulations or orders issued under Section 2, which is the price control section, with jurisdiction to review vested in the United States Supreme Court. What does the word “validity” mean in this connection? Does, it limit the consideration of a regulation or order to matters and things found wholly within the confines of the Emergency Act itself or does it also permit the two courts to consider validity from the angle of constitutionality? In my view there can be but one answer to this question: “Validity” as here contemplated must be arrived at not only within the four corners of the Act wherein evidence bearing upon arbitrary and capricious conduct may be considered but also it may be arrived at after a consideration of the pertinent constitutional provisions upon which the Act itself in the last analysis must find its justification. It follows that the word “validity” in the sentence when coupled with the language conferring exclusive jurisdiction on the two courts, evidences an intent to prohibit the United States District Court for the District of New Jersey from exercising any authority to pass upon the constitutionality of the Emergency Act as it may arise at the trials under the indictments. In considering the second sentence of the Act above quoted, it is again equal*516ly clear that the letter and the spirit indicate an unmistakable intent to deprive the District Court of the right to “set aside” for unconstitutionality any provision of the Act upon which the regulations or orders may be based. The words “set aside” must be given their usual and generally accepted effect and as used in this statute they preclude the setting aside of the Act for any and all reasons whatsoever. Section 380a of Title 28, pursuant to which this court is now sitting, uses the words “setting aside” in the sense that a setting aside is what occurs to an Act of Congress when it is found to be “repugnant to the Constitution of the United States”. So in the instant case if the Act were found to be unconstitutional it would be “set aside” and for nothing holden.
Considering both sentences together I can arrive at no other conclusion but that it was the studied intent and manifest desire of Congress to prohibit the District Courts of the United States, the Circuit Courts of Appeals and as well this three-judge Statutory Court, from exercising their usual powers to pass upon the constitutionality of the Emergency Control Act or of anything that might be attempted by way of rules or orders under the guise thereof. Moreover such construction involving as it does a total elimination of the injunctive powers of the courts is quite in line with the modern tendency of Congress partially to strip the courts of their injunctive powers when the objects sought might be interrupted or invalidated by the exercise of equitable relief. This leaves the plaintiffs herein stripped of their constitutional rights in the only forum where they may be tried on the indictments pending against them. It deprives them of due process of law guaranteed by the Fifth Amendment and also invades their right to a full and complete trial in the state where the alleged crimes were committed as guaranteed by Article 3, Sec. 2, Clause 3 of the Constitution.
Since the plaintiffs herein must face indictments wherein issues are involved bearing on the words above considered their meaning should be positive and certain and no strained interpretation should be indulged to save the constitutionality of any part of the Act.
It is my thought that a temporary stay should issue and that we should proceed to final hearing on the complaint.