(dissenting on jurisdictional grounds).
In my opinion the case should he decided by a single district judge rather than by a specially constituted three-judge court. This latter type of court has been authorized by Congress in circumstances which come within the following provision:
“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” (28 U.S.C. § 2282 (Supp. IV 1951))
In other circumstances jurisdiction does not fall to a district court composed of three judges. California Water Service Co. v. Redding, 1938, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323;1 see, also, Ex parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249 2 As said in Oklahoma Gas Co. v. Oklahoma Packing Co., 1934, 292 U.S. 386 at 391, 54 S.Ct. 732, 78 L.Ed. 1318,3 the three-judge procedure is an extraordinary one, designed for a specific class of cases. Under such procedure an appeal may he taken directly to the Supreme Court, 28 U.S.’C. § 1253 (Supp. IV 1951), to permit expeditious final disposition of a question involving the possible repudiation of an act of Congress as repugnant to the Constitution. But the basis for the claim of such repugnancy must 'be substantial. Jameson & Co. v. Morgenthau, 1939, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189 (see n. 1, supra); California Water Service Co. v. Redding, supra.
The amended complaint does not meet these requirements. It does not even mention the Act of Congress relied upon to support the Secretary’s revocation of, and refusal to renew, plaintiff’s passport, namely, 44 Stat. 887 (1926), 22 U.S.C.A. § 211a.4 The amended complaint refers only to 22 U.S.C.A. §§ 223-225, and asserts that these provisions, as construed and applied by the defendant to the plaintiff, who is a citizen, are unconstitutional. Section 223 has to do with war-time restrictions upon the departure from or entry into the United States of an alien, and other matters equally inapplicable. Section 224 makes it unlawful under conditions therein specified for a citizen to depart from or enter the United States unless he hears a valid passport, provisions also presently inapplicable to the plaintiff.5 Section 225 prescribes the punishment for violation of §§ 223 and 224.6
*454Even if we construe the complaint as though it implicitly attacks the constitutionality of 22 U.S.C.A. § 211a, no substantial constitutional question is presented. This section reads:
“The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.” (44 Stat. 887 (1926), 22 U.S.C.A. § 211a.)
In the first place, the constitutionality of this provision is not affected by construing it to include the power to revoke a passport. If such an interpretation is erroneous revocation has resulted from an exercise of authority not granted and would 'be invalid on that ground. This would leave untouched the question of constitutional validity of the statute itself, placing control of granting and issuing passports in the Secretary of State under rules prescribed by the President. On that question I think it cannot be seriously doubted that Congress acted within its authority. Congressional choice in this respect is not only plainly constitutional but is obviously appropriate, for the subject has much to do with the conduct of foreign affairs. Indeed, when plaintiff’s position is analyzed her attack upon the action of the Secretary is not in reality an assertion that the statute itself is unconstitutional but a claim that the Secretary, in administering the statute, has exceeded his powers in assuming authority to revoke, and, in any event, in not according plaintiff the safeguards to which she is entitled.7 As indicated above, whether or not the statute includes the power to revoke is a question of statutory construction; and failure of the Secretary, or of the regulations prescribed by the President, to accord proper safeguards, does not affect the constitutionality of the statute, for if plaintiff is entitled by the Constitution to notice and hearing or other appropriate procedures, the statute must be read as requiring such procedures. The Japanese Immigrant Case, 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; American Power & Light Co. v. S. E. C., 1946, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103; Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616.8
In my view therefore the case is one for the usual district court composed of a single judge, with right in the parties to appeal from his decision to the Court of Appeals, followed by right of petition to the Supreme Court for review on writ of certiorari. This litigation should not be deemed within the special class of cases committed by Congress to a specially constituted three-judge court, properly con*455vened only when a substantial question is raised as to the constitutionality of an Act of Congress the enforcement, operation or execution of which is sought to be enjoined, with right of direct appeal to the Supreme Court. 28 U.S.C. § 2282, supra. Plaintiff in the end seeks at most to enjoin action of the Secretary which might be invalid because not in conformity with the proper construction of the statute under which he acts. She raises, and there is involved, no substantial question as to the constitutionality of the statute.
. This case involves the predecessor provision of 28 U.S.C. § 2282, supra, which was identical in the respect here apposite to § 2282.
. This case arose under the old Jud.Code § 266, the predecessor of 28 U.S.C. § 2281. The latter provision presently governs the convening of a three-judge district court where the attack is upon the constitutionality of a state statute. Those parts of the opinion which support the text are fully applicable here as § 266, supra, in the respect here pertinent in no way differs from § 2282.
. This case also arose under old § 266 (see n. 2, supx'a).
. This section can be traced back ultimately to Rev.Stat. § 4075, Act of May 30, 1866.
. The defendant in its answer avers, and it is not disputed, that plaintiff’s passport is valid for the purpose of permitting her to return to the United States.
. Notwithstanding the termination by the President on April 28, 1952, of the Proclamation of May 27, 1941, referred to in § 223, the provisions of §§ 223-225 are no doubt still applicable by virtue of Acts of Congress enacted since April 14, 1952. Emergency Powers Intex-im Continuation Act, Public Law 313, approved by the President April 14, 1952; S.J. Res. 156, Public Law 368, approved by the President May 28, 1952; Public Law 393, approved by the President June 14, 1952; H.J.Res. 490, Public Law 428, approved by the President June 30, 1952; Public Law 450, approved by the Presi*454dent July 3, 1952; also, Immigration and Nationality Act, Sec. 215(a) et seq., enacted into law over President’s veto, June 27, 1952.
. The complaint nowhere asserts that 22 U.S.C.A. § 211a is invalid as an unauthorized delegation of legislative authority. Such a claim in any event would not be substantial, since the broad terms of the grant are sufficient in the area of governmental action which has to do with the conduct of foreign affairs. United States v. Curtiss-Wright Corp., 1936, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Chicago & Southern Air Lines v. Waterman Corp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568.
. In his concurring opinion in AntiFascist Committee v. McGrath, 1951, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, Justice Frankfurter said: “The construction placed by this Court upon legislation conferring administrative powers shows consistent respect for a requirement of fair procedure before men are denied or deprived of rights. From a great mass of cases, running the full gamut of control over property and liberty, there emerges the principle that statutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning. * * * ” 341 U.S. at page 165, 71 S.Ct. at page 645. To like effect see Anniston Mfg. Co. v. Davis, 1937, 301 U.S. 337 at page 356, 57 S.Ct. 816, 81 L.Ed. 1143.