(dissenting) .
I think the judgment should be reversed for three reasons, each independent of the other two.
1. The District Court had no jurisdiction to review the Administrator’s order. The Administrator’s authority to ration sugar is derived from § 301 of the Second War Powers Act, 56 Stat. 177, 50 U.S.C.A. Appendix, § 633. This, same section as amended, 58 Stat. 827, 50 U.S.C.A.Appendix, § 633, provides that “The district courts of the United States are hereby given exclusive jurisdiction to enjoin or set aside, in whole or in part, any order suspending any priority or allocation * * * This *272provision shows,1 and its legislative history2 confirms beyond dispute, the intention of Congress that allocation orders other than suspension orders should not be subjected to judicial review. The Act therefore precludes review of such other orders, including the order in suit. For “except when the Constitution requires it, judicial review of administrative action may be granted or withheld as Congress chooses.” 3 The Supreme Court has said: “Congress has long delegated to executive officers or executive agencies the determination of complicated questions of fact and of law. And where no judicial review was provided by Congress this Court has often refused to furnish one even where questions of law might be involved.” 4
It is true, as this court points out, that the question whether the rationing order in suit is consistent with the War Mobilization and Reconversion Act depends upon how that Act is construed and not upon disputed facts. It may be true, as the court apparently assumes, that substitution of the court’s for the Administrator’s construction of the Act will prove profitable to appellee. The Constitution does not, for all that, prevent Congress from making the Administrator’s construction final. State of Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561; United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259. In other words the Constitution does not require that a rationing program which is at least a reasoned attempt to comply with the law shall be subjected to judicial review. There is no question of arbitrary action in this case.
The great bulk of the total sugar supply of industrial users is allocated on a historical-use basis. If the present decision stands it will not long stand alone, and all this will have to be changed. The creation of a rationing system is a complicated business that demands the knowledge and skill of experts in the field. Courts are not equipped either to create such a system or to appreciate fully the consequences of destroying one. Accordingly Congress gave them neither function. This court is destroying such a system on the strength of a disputed interpretation of a complicated statute and despite the Administrator’s warning that timely substitution of a different system may be impossible. This seems to me contrary both to law and to the public interest. It is what Congress sought to prevent. Judges to whom a statute is novel do not necessarily understand it better than executive officers who have lived with it for years. Congress acted on the reasonable theory that, except with regard to suspension orders, any possible superiority of judicial over executive understanding of the law would be outweighed by the delay, confusion and obstruction which judicial review of rationing would produce.
2. The requirements of §§ 203(b) and 204 of the War Mobilization and Reconversion Act5 on which appellee relies are not applicable in this case, because there has been no “expansion, resumption, or initiation” of nonwar production which requires sugar. The following discussion relates to § 203(b). The point is even clearer with regard to § 204.
Section 203(b) provides: “The executive agencies exercising control over manpower, production, or materials shall permit the expansion, resumption, or initiation of production for nonwar use whenever such production does not require materials, components, facilities, or labor needed for' war purposes, or will not otherwise adversely affect or interfere with the production for war purposes. Such production for nonwar use shall be permitted regardless of whether one or more competitors normally engaged in tire same type of production are still *273engaged in the performance under any contract which 'is needed for the prosecution of the war, and shall not be made dependent upon the existence of a concern or the functioning of a concern in a given field of activity at a given time.”6
•That § 203(b) does not become effective until an “expansion, resumption, or initiation of production for nonwar use” has been7 permitted appears both from its opening sentence and from the statement of policy at the beginning of § 203, on which statement § 203(b) directly depends: “Curtailments of war production or terminations of war contracts shall be integrated and synchronized with the expansion, resumption, or initiation of production for other war purposes, and, to. the greatest extent compatible with the effective prosecution of the war, of production for non-war use. To effectuate this policy — ”
“Production for nonwar use” is a very broad and general term. There are no limiting words in its context, either in the opening statement of policy or in § 203(b) itself, except those that preclude use of materials etc, required for war purposes. Yet appellee and this court would give to the broad and general term a narrow and specific meaning, as if it read “production of any particular commodity or by any particular concern for nonwar use.” I can find no basis for this interpolation. The context does not suggest it8 and the purpose of § 203(b) excludes it. That purpose was to make available for nonwar use materials no longer needed for war use. The question whether a given amount of a given material is no longer needed for war use and can be diverted to nonwar use is entirely independent of the particular commodity, and likewise of the particular concern, to which it is to be diverted. At the time the Act was passed the question, when allocation of sugar to “production for nonwar use” could be increased without using materials “needed for war purposes,” was intelligible and vital. To answer it one had to determine total supply of sugar and also war needs for sugar, but nothing else. The question when allocation of sugar to production of candy, or chocolate candy, or chocolate peppermint candy, or bulk sweetened condensed milk, or to production by a particular concern, for nonwar use could be increased without using materials needed for war purposes would not only have been less vital and less intelligible; it would have been completely impossible to answer. For in order to answer such a question with regard to any one particular nonwar use, or with regard to any one concern, the Administrator would have had to determine previously the amount of sugar that was to be allocated to every other nonwar use, or to every other concern. Appellee’s interpolation in § 203(b) would therefore make it like the fabulous statute which required that whenever two railroad trains approached a grade crossing at the same time, each should stop and neither should proceed until the other had proceeded. Without appellee’s interpolation, § 203(b) propounds no such riddle. The “production for non-war use” with which it deals is simply non-war production which requires critical “materials, components, facilities,” etc. The Act does not and the court should not particularize the term further.
Since October of 1944, when the War Mobilization and Reconversion Act was passed, there lias been no “expansion, resumption, or initiation” of nonwar production which requires sugar. Because such production, unlike various other sorts of nonwar production, was never stopped, it could not be resumed or initiated. It has not been expanded. On the contrary, the amounts of sugar allocated to civilian industrial use9 were less in 1945, and also in 1946, than they were in 1944. Since there are seasonal variations in the industrial use of sugar it is also relevant that the amounts so allocated were less in each quarter of *2741945, in each quarter of 1946, and in the first quarter of 1947, than they were in the corresponding quarters of 1944.
The second sentence of § 203(b) contains the words on which appellee chiefly relies: “Such production for nonwar use * * * shall not be made dependent upon the existence of a concern or the functioning of a concern in a given field of activity at a given time.” “Such production” means “that sort of production”; production of the sort which is expanded in'accordance with the preceding sentence of § 203(b).10 Congress did not require the Administrator to divide a merely constant, or a diminishing, available sugar supply among an unlimited number of new industrial users. So wasteful a use of so essential a resource would not promote but retard “war mobilization and reconversion.”
Since nonwar production which requires sugar has not been expanded, the second sentence of § 203(b) has not come into effect with regard to sugar.
3¡ Even if the Administrator’s order were judicially reviewable and §§ 203(b) and 204 were presently applicable appellee would be entitled to no relief. These sections, if they were applicable, would not entitle appellee to anything of which the Administrator’s order deprives it.
The second sentence of § 203(b), when applicable, will forbid exclusion of any concern from production on the ground that it was not in existence or was not “functioning * * * in a given field of activity” at a given time. But appellee was in existence and was functioning “in a given field of activity at a given time” which the Administrator’s order makes critical. Accordingly, the order does not exclude appellee from production. The order does not exclude appellee from production either because it was not in existence at a different time, or because it was not functioning at a different time, or for any other reason. That some other cencern with a different history might or would be excluded from production by the Administrator’s order can, of course, give appel-lee no standing to sue.
Section 203(b) deals with only two topics: (1) when and how far expansion, etc., of production for nonwar use shall be permitted, and (2) who shall be entitled to participate in such expanded production when it is permitted. Appellee assumes that this section deals also with an additional topic, viz. (3) on what principles and in what proportions available supplies shall be ‘ distributed among the concerns which are to be entitled to participate in such expanded production when it is permitted. This assumption is erroneous. The section does not touch this topic. The legislative history of the Act shows that Congress did not even consider it.
Section 204, when it becomes applicable, will require the Administrator to allocate “a percentage” of available sugar for the exclusive use of “small plants.” It does not appear that this has not been done. On the contrary, appellants say and appellee does not deny that all concerns engaged in production of bulk sweetened condensed milk are small plants within the statutory definition, viz., concerns “employing two hundred and fifty wage earners or less.” It follows that 100 percent of the sugar allocated to this industry is allocated to such plants.
Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 305, 64 S.Ct. 95, 88 L.Ed. 61, illustrates the principle.
Senate Report No. 1301, 78th Cong., 2d Sess., p. 2; Hearings before the Committee on the Judiciary, House of Representatives, 78th Cong., 2d Sess., on H. R. 4993, Serial No. 20. 1944, p. 83.
Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 426.
Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61.
58 Stat. 787, 50 U.S.C.A.Appendix, §§1658,1659.
Italics in this and the following par-graph supplied.
Or should be. Appellee’s contention is not that the Administrator should permit expansion, etc., but that he has actually done so.
The majority of the court read § 203 (b) backward, and modify its first sen-fence to produce conformity with their understanding of its second. If the two sentences are road in the order in which Congress wrote them, there is no occasion to modify either.
Also the amounts allocated to civilian use of all sorts.
We have recently held that the word “such” in a different sort of statute has precisely this sort of effect. Nieves v. United States, — U.S.App.D.C. —, 160 F.2d 11.