The plaintiff has not exhausted the administrative remedies available to him, as his petition in the Tax Court still pends. That he cannot, in such circumstances, maintain a suit to restrain the action of administrative officers is so well settled as not to require the citation of authorities.
The Supreme Court has held that whether the plaintiff's contracts are subject to the Act is a question within the exclusive jurisdiction of the Tax Court.
This is true also of the question of fact as to whether the plaintiff actually did derive excessive profits from his operations during the year in question
The plaintiff's plea of the statute's unconstitutionality is prematurely presented here, as it should be urged first in the Tax Court. That court, in tax cases, has passed upon constitutional questions heretofore,
and its decisions concerning them have been appealed and the appeals so taken have been considered by the courts.
While the Renegotiation Act provides that when the Tax Court has redetermined the amount of excessive profits there shall be no judicial review of its determination, it does not follow that a Tax Court decision concerning the constitutionality of the Act may not be reviewed by the courts. Since the Tax Court is an agency in the executive branch of the government, it does not have, and could not be given, final or exclusive jurisdiction to determine constitutional questions. The power to pass on the constitutionality of an act of the Congress is a prerogative of the judicial branch of the government. Constitutional questions under the Renegotiation Act are, in the first instance, part of the case before the Tax Court, but, as with questions of jurisdiction,
the decisions of that court concerning them are appealable. Consequently, the plaintiff in the case at bar must first present his constitutional question to the Tax Court if he desires to obtain an adjudication concerning it
The motion to dismiss the complaint is granted.