(dissenting).
I feel the same compunction as my brothers against trenching upon the Secretary’s powers; but I also feel, as they do too, that we cannot escape the responsibility of determining whether he has gone beyond the limits set by Congress; and I shall not labor the argument that that is a duty as imperative as the first. The important question is the meaning in § 8c (5) (A) of the phrase: “Classifying milk in accordance with the form in which or the purpose for which it is used,” for on that the validity of the orders depends. If I understand it aright, my brothers do not commit themselves to the position that if a “handler” changes milk into cream, ships it to another plant of his own, there makes it into ice cream, and sells it as such, the Secretary may classify it as cream. They go no further than to hold that, even though a mere movement between plants is not a “use,” at least a sale is; and that since the plaintiff sold all its milk to ice cream makers in the “form” of cream, it could be classified as cream. The proviso in the first order and the exception in the second they support on the theory that, although the milk may be classified according to the “form” in which it is “used,” it need not be; it may also be classified according to the “purpose” for which it is “used”; and in granting to “handlerjs” the privileges set out in the proviso and exception, the Secretary was availing himself of this alternative standard. But he was not on that account compelled to make that privilege depend altogether upon “purpose”; he might refuse to make “purpose” the sole standard, even in those cases in which he chose to adopt it at all. In other words he might circumscribe a' privilege which must rest upon “purpose” to be valid to any extent, by limiting it in certain circumstances by “form.” This he did by making “form” count when the movement of the milk to a buyer who was an ice cream maker, was interrupted so as to become two movements. I doubt whether I should in any event be willing to take such a pause as the plaintiff’s cream experienced in the case at bar as having any relation whatever to the declared policy of this act, to which it seems to me the merest irrelevancy; but, since I think that the orders inescapably make the “form” in which the milk moves the standard, and not that in which it is sold; and since I further think this is not an admissible standard, I shall not consider the exception or the proviso.
We cannot substitute the “form” in which the milk is sold for the standard set up in the orders,, first because the words of the orders have clearly nothing whatever to do with sales. Indeed, not only does the second order make tlie standard the “form” in which the milk is moved; but even that in which it is “held at” the original plant. Nothing could be further from the notion that the “form” in which it is sold has anything to do with classification. Moreover, such a standard would not work out the policy of the act, for it would operate with the utmost caprice. It would mean that a “handler,” who made his own ice cream for example, could pay the producer less for his milk than an ice cream maker must pay who had to buy of “handlers.” It seems to me not extreme to say that that-is an impossible intent to impute to Congress, both from the view of the producers’, and the ice cream makers', interest. Nor can I agree that we can recast the orders to this pattern because the case at bar happens to fit into it, or say, if the Secretary might have made the “form” at sale the standard, though he did not, we will decide the case as though he had. I admit that at times courts have avoided constitutional questions by that device, and it may be tenable when one can say that the statute would certainly have been passed in a constitutional form if the legislature had known that, as it stood, it would be unconstitu*983tional. But I submit that we cannot apply the doctrine to orders like these, and surely not in this instance, for we cannot say that the Secretary would have adopted as a standard the “form” of the milk at its sale. I do not therefore see how we can escape deciding whether the “form” in which milk is moved from, or “held at” a “handler’s” plant can be deemed the “form” in which it is “used.” Certainly such a movement or holding is not a “purpose” for which it is “used.”
Were we not concerned with an administrative ruling I doubt if anyone would for a moment entertain such an interpretation. Congress was certainly thinking in the terms of the industry which regulated the price of milk according to the care in its handling, which in turn depended upon the “form” in which it was to be marketed for consumption, or consumed as a raw material. I cannot imagine that if a standard so remote from either had been intended, its expression would have been left to a word so inept as “use” to express inter plant movements or .pauses at a given plant, particularly when that word was exactly fitted to express the “form” in which it was marketed for consumption, or lost its identity as a raw material. Nor does it seem to me to advance the argument a little that the phrase was originally “ultimate use,” and was changed lest the actual use made by the consumer might be thought relevant.
It may well be, as my brothers say, that the industry is extravagantly difficult to regulate; if so, I agree that we should accord great latitude in its administration. Had the orders imposed the severest burden upon “handlers” to prove that the “form” in which they moved milk, or even “held” it, was not the “form” in which it was “used,” I should have readily assented. Such devices are a necessary part of the paraphernalia of all administrators; and are ordinarily adequate. Perhaps they are not in this case; but if not, they do not justify a departure from the standard set by the statute. Under the guise of effecting its policy we ought not to disregard those means to which the realization of that policy was confided. If the statute, even though fully accoutred from the armory of procedure is still insufficient, the industry must once more resort to Congress.