Voyager 1000 v. Civil Aeronautics Board , 27 A.L.R. Fed. 140 ( 1973 )

PELL, Circuit Judge

(concurring).

I concur in the foregoing opinion although I do so with considerable reluctance. My disinclination, however, arises from no feeling that a legally incorrect result has been reached. Indeed, Judge Sprecher’s well reasoned opinion leaves little area, it seems to me, for disagreement with the legal premises it sets forth and applies.

It is somewhat ironical, and perhaps to be deplored, that in a society which generally encourages competitive free enterprise a service is to be stifled which a substantial segment of citizenry of the Midwest portion of the country found to be highly desirable in making available travel by air which might not otherwise have been enjoined by them, and which travel has been conducted in full compliance with governmental safety requirements.

While this travel presumably was ordinarily for pleasure rather than, business reasons, the right of such movement is one that has received Supreme Court recognition.

“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969).

While the further movement of the Voyager members is perforce restricted by our upholding of the administrative determination here involved, we are unable to say that it is not supported by substantial evidence, nor that it is an unconstitutionally unreasonable application of the guidelines laid down by the Congress. That body has as a policy matter legislated where competing interests are involved. It is our function in the judiciary not to make the law but only to determine what it is and whether it exceeds constitutional limitations either as stated or as applied.