concurring.
I agree with the Court’s judgment and opinion because it holds that the Lea Act is not beyond the power of Congress to regulate commerce. I desire, however, to add a few words.
The constitutional basis for the legislation is the same as that upon which the validity of the Sherman Law rest's. It is too late in the day to require argument or citation of cases in support of the right of Congress to free interstate commerce from obstruction that the exertion of monopolistic power may entail or from interference that may reasonably be deemed to promote monopoly. Equálly clear is it that Congress may direct its legislation specifically towards a disclosed evil, without generalizing its prohibition, when in its judgment like evils have not disclosed themselves elsewhere. It would be a usurpation of the legislative authority for us to find that there was no basis in reason for the judgment of Congress that the public interest called for legislation to deal with what is colloquially called “feather*14bedding” in connection with the broadcasting business. Beyond that, it is not our province to go.
The District Court took a different view, and on defendant’s motion dismissed this information on the ground that the statute is unconstitutional. 68 F. Supp. 845. Since the Court now holds that the statute is constitutional, the case goes back to the District Court.
The Court conjures up difficulties which I do not share. The case is here under the Criminal Appeals Act of 1907, 34 Stat. 1246, as amended by the Act of May 9, 1942, 56 Stat. 271, 18 U. S. C. (Supp. V, 1946) § 682, whereby a direct review can be had of a district court judgment setting aside an indictment or information, if the decision of the district court is based “upon the invalidity or construction of the statute upon which the indictment or information is founded.” Our decisions have construed this to mean that review can be had here only if a district court’s decision was based exclusively upon the invalidity or construction of a statute. A criminal case cannot be reviewed here if questions of criminal pleading- — defects not arising from the statute under consideration — enter into a decision sought to be reviewed. See United States v. Hastings, 296 U. S. 188, 192, 194; United States v. Borden Co., 308 U. S. 188, 193; United States v. Swift & Co., 318 U. S. 442. If both the sufficiency of criminal pleading and the validity or construction of the underlying statute were in issue before the District Court, and views as to both were interwoven in the court’s decision, this Court has no jurisdiction to entertain the appeal. Under the Act of May 9, 1942, it must remand the cause to the appropriate circuit court of appeals. On the other hand, if the question of constitutional construction was the isolated ground of decision by a district court dismissing a federal prosecution, that is the only question to be considered here and it must be considered within the scope given it by *15the district court. Other questions may be imbedded in the case which may eventually come to the surface. But they are not brought to the surface here under the limited, specific review given by the Criminal Appeals Act. It is to such implicit questions of pleading, and to statutory or constitutional questions not passed upon by a district court, that Mr. Chief Justice Hughes had reference when he said, “The Government’s appeal does not open the whole case.” United States v. Borden Co., supra, at 193.
There is no complication in the record before us to an exercise of our jurisdiction under the Criminal Appeals Act. The District Judge’s decision is wholly free from any ruling involving criminal pleading. He stated precisely what he deemed to be the sole issue before him and which alone he decided: “The only question before the court is the constitutional aspect of this statute as it was written by Congress. On this question the court is of the opinion that this statute is unconstitutional for the reasons above stated.” 68 F. Supp. at 850.
We, therefore, have no acknowledgment or intimation by the District Judge that he had any difficulty with the information as a matter of pleading, or that it carried any ambiguities which he resolved one way rather than another. If that were so, we would have no jurisdiction to review his decision. The District Court found constitutional defects in the statute “as it was written by Congress.” We find the contrary. Therefore, the information should go back to the District Court for disposition. Just as we cannot go behind a district court’s determination regarding the sufficiency of the indictment as a matter of pleading as a preliminary to passing on statutory validity, so, when a naked question of validity is presented to us, it is not for us to scrutinize the charge and hypothesize possibilities whereby new questions may arise of a statutory or constitutional nature.