UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
November 16, 1949
COLONIAL AIRLINES, Inc.
ADAMS et al.
The opinion of the court was delivered by: PROCTOR
See 70 S. Ct. 490.
In this case the plaintiff challenges the constitutionality of such parts of Section 402(b) and 801 of the Civil Aeronautics Act of 1938, 49 U.S.C.A. §§ 482(b), 601, as relate to permits to foreign air carriers, and charges that the defendants, who are the members of the Civil Aeronautics Board, have conspired to take such action as will bring about the issuance of a permit to a foreign air carrier to make scheduled flights to and from points in this country, which would issue with the approval of the President. By preliminary injunction the defendants have been restrained from transmitting any recommendation or decision to the President of the United States for his approval, without which the permit cannot issue. In these circumstances, it might seem that the plaintiff should not now be heard to challenge the constitutionality of the Act involved, as the only administrative action which could injure the plaintiff, namely, the actual issuance of the competitive permit, has not yet occurred and cannot occur until the President has exercised a discretion which the statute gives to him. However, as there is no statutory judicial review whatever provided with respect to the administrative action here involved,
the Court is of the view that the constitutional question presented should now and here be met and answered.
The majority of the Court is of the view that, as respects the issuance of a permit, the challenged sections of the Act are not repugnant to the Constitution as claimed. It is clear that, before the Board can make recommendations to the President, it must make findings as required by Section 402(b)
of the Act. Until the Board has acted, the President cannot approve or disapprove the issuance of the permit. It is, therefore, clear that, considering the two sections together, the Congress has provided certain standards of action by the Board in connection with the issuance of a permit to a foreign carrier. As the subject matter of this delegation of power by the Congress to the Board and the President is that of foreign commerce, we do not believe that further standards are necessary to meet constitutional requirements. U.S. v. Curtis-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255. While the immediate question involved in the Waterman case
was that of the construction of the statute as it relates to judicial review of a domestic carrier seeking a permit to engage in foreign operation, it seems necessarily implicit in what the Court said that the Congress had the right to make the delegation which it did make in this statute. The motion to dismiss the complaint should be granted in so far as it rests upon the claim that the statue is repugnant to the Constitution.
The complaint, in so far as it charges wrongful conduct on the part of the defendants (which allegations are, of course, admitted for the purpose of the motion to dismiss), does not state a cause in which this Court has jurisdiction to grant the relief sought. The power to issue, with the approval of the President, the permit here sought to be restrained is clearly within the power given by the Congress to the Board. We have just held that the Congress may constitutionally grant this power. This Court could not restrain the defendants, who are the only persons authorized by law to act for the government,
from exercising that statutory power lawfully given without interfering with the sovereign power of the United States. This cannot be done without the consent of the United States to be sued. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, and numerous cases cited therein. In this view, the motion to dismiss such parts of the complaint as have not already been disposed of is granted.