dissenting:
Congress has provided through § 402 (a) of the Communications Act of 1934 that in appeals from certain classes of orders of the Federal Communications Commission the appellate court may issue a stay. The order here involved is of a class which is expressly excepted from §402 (a). Sec. 402 (b), which provides for an appeal from this class of order, contains no provision whatsoever for a judicial stay. Where Congress in one section of an Act has provided for a stay of certain orders but not of others, it has not remained silent on the subject. It has drawn a line. And that line should not be obliterated by us, in absence of plain and compelling indications that the purpose of Congress was different from what the face of the statute reveals. There are no such reasons here.
The legislative history gives no comfort to the view of the majority. In drafting § 402, Congress had before it H. R. 7716, 72d Congress. That bill, designed to amend the Radio Act of 1927, had been passed by both houses in 1933 but had failed of enactment because of a pocket veto. Under § 16 (f) of that bill, orders of the type here in question could be stayed by the appellate court. Congress relied extensively on that earlier bill in drafting § 402. H. Rep. No. 1918, 73d Cong., 2nd Sess., pp. 47-49. If Congress had intended the appellate court to have the power to stay this type of order, it hardly seems likely, as the Commission points out, that Congress would have failed to include it, when, only the year before, it had attempted to write into the statute a specific provision conferring that power. But if we disregard that circumstance and turn to other parts of the legislative history, there are no indications that the line which Congress drew *19between § 402 (a) and § 402 (b) was inadvertent or accidental.
Nor are we justified in rewriting the statute to iron out possible logical inconsistencies in the classification of orders which Congress has made in § 402 (a) and § 402 (b). If we were a legislative committee, perhaps we would not retain in § 402 (a) orders which are made by the Commission on its own motion and which modify a station license, since such orders if made pursuant to an application are covered by § 402 (b). But to seize on that lack of symmetry here is to miss the forest for the trees. The nature of the run of the orders excepted from the stay provisions of § 402 (a) demands respect for the words of the Act. The instant case is a good illustration. Federal Communications Commissions. Sanders Bros., 309 U. S. 470, holds that a competitor such as appellant has no private property interest which may be protected on appeal. “The policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license.” Id., p. 475. Any injury to an existing station as is alleged here “is not a separate and independent element to be taken into consideration by the Commission in determining whether it shall grant or withhold a license.” Id., p. 476. Thus it is manifest that the failure of Congress to extend the stay provisions of § 402 (a) to the run of orders of this type makes sense. The Urgent Deficiencies Act, which is incorporated into § 402 (a), allows a temporary stay “where irreparable damage would otherwise ensue to the petitioner.” 38 Stat. 208, 220. But where appeals under § 402 (b) (2), as in the instant case, are not shown to involve private rights, analogies to situations where the power to issue a stay is implied because irreparable damage may be done an appellant whose individual interest has been unlawfully invaded are inapposite. For the same reason, statistics as to the presence of this power in statutes of other administrative agencies *20are irrelevant, in absence of a showing that in the precise situations there involved no private rights were at stake.
And that leads to a related reason why it will not do to lean on “the historic procedures of federal appellate courts” so that an implied power to issue a stay in this type of case may be found. “The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property.” In re Sawyer, 124 U. S. 200, 210. All constitutional questions aside (Muskrat v. United States, 219 U. S. 346), we should require explicit, unequivocal authorization before we permitted an appellant who has no individual substantive right at stake in the litigation to obtain a stay to protect the public interest. Eepeated attempts of private litigants to obtain a special stake in public rights have been consistently denied. See Massachusetts v. Mellon, 262 U. S. 447; Sprunt & Son v. United States, 281 U. S. 249; Alabama Power Co. v. Ickes, 302 U. S. 464; Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U. S. 118; Atlanta v. Ickes, 308 U. S. 517; Singer & Sons v. Union Pacific R. Co., 311 U. S. 295. The attempt to obtain a stay is but another manifestation, albeit oblique, of that same endeavor. Hence, instead of starting from the premise that an “historic power” to issue a stay in this type of case will be readily implied, we should assume just the contrary. Not even long acquiescence or approval on the part of the Commission should lead us to make such a departure from those historic, accepted principles. For that reason alone, § 402 (b) should be read narrowly and restrictively.
But it is said that Congress entrusted the vindication of the public interest to private litigants. The Sanders case, properly construed, merely means that the Court of Appeals has jurisdiction of appeals by a “person aggrieved” or by one “whose interests are adversely affected” by the Commission’s decision. § 402 (b). But *21that does not mean that an appellant has a cause of action merely because he has a competing station. Unless he can show that his individual interest has been unlawfully invaded, there is merely damnum, absque injuria and no cause of action on the merits. Alabama Power Co. v. Ickes, supra; Greenwood County v. Duke Power Co., 81 F. 2d 986, 999. And see Duke Power Co. v. Greenwood County, 302 U. S. 485. Congress could have said that the holder of a radio license has an individual substantive right to be free of competition resulting from the issuance of another license and causing injury. In that event, unlike the situation in Muskrat v. United States, supra, there would be a cause of action for invasion of a substantive right. But as we said in the Sanders case, Congress did not create such a sub-, stantive right. And no facts are shown here which would bring this appeal outside the rule of that case. On that assumption, I fail to see how an appeal statute constitutionally could authorize a person who shows no case or controversy to call on the courts to review an order of the Commission. A fortiori he would have no standing to obtain a stay.
Furthermore, the power to issue a stay in this type of case cannot be found in the “all writs” statutes. Judicial Code, § 262; District of Columbia Code (1940 ed.) Title 11-208. As we stated in Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, the relationship between the Court of Appeals and the Commission is not that of federal courts inter se. “. . . to assimilate the relation of these administrative bodies and the courts to the relationship between lower and upper courts is to disregard the origin and purposes of the movement for administrative regulation and at the same time to disregard the traditional scope, however far-reaching, of the judicial process. Unless these vital differentiations between the functions of judicial and administrative tri*22bunals are observed, courts will stray outside their province and read the laws of Congress through the distorting lenses of inapplicable legal doctrine.” p. 144. The Commission, not the courts, is the ultimate guardian of the public interest under this Act. The appellate court is limited to a correction of “errors of law.” Id,., p. 145. The judgment of the Commission, not the court, determines whether the public interest will be served by an application. Id., pp. 144-145. Hence, the power of the courts in this situation to issue writs under the “all writs” statutes should be limited to the protection of its jurisdiction. If, as here, construction of a new station is completed pending appeal by another licensee, the court’s jurisdiction is not impaired, though we assume that it has jurisdiction of the appeal and that appellant has a cause of action on the merits. If the Commission has committed an error of law, it must bow to the decree of the court and revise its order. But to allow the court to go beyond that and find an implied power to issue a stay in this type of case is to distort the statutory scheme. 12 Air L. Rev. 224. Jealous regard for the administrative role and function in this field will leave to Congress any enlargement, within constitutional limits, of the judicial power.
Mr. Justice Murphy joins in this dissent.