(dissenting).
I am of the clear opinion that the result reached and the conclusions stated by the majority are unwarranted in law, and also, with respect to the findings of the Secretary of Agriculture, represent a case of judicial fiating which, though it has sometimes found favor in other courts (Cf. Quaker Oats Co. v. Federal Security, 7 Cir., 129 F.2d 76, reversed 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724), has not until now found favor here. Cf. Byrd v. United States, 5 Cir., 154 F.2d 62.
Because I am of this opinion, I feel constrained not only to note my dissent but to point out as briefly and as effectively as I can the patent errors on which the opinion proceeds. Because, too, it is clear to me that, while certainly presenting matters material for legislative consideration, it as certainly does not present matters material to the determination of the issue presented here, which is not what the law ought to be but what it is, I pass, with no more than comment, the basic assumption of the opinion, that the effect upon the future of the industry of our construction of the statute is the controlling consideration in this case, to go at once to the controlling issues which are presented for decision here.
*863The first of these, as stated in the majority opinion [246 F.2d 856] is whether the questions presented for our review are the identical questions which were decided by the Second Circuit in the Certified Color Industry Committee v. Secretary of Health, Education and Welfare, 2 Cir., 1956, 236 F.2d 866.
The second, as the majority opinion states it on page 857 of 246 F.2d, is “whether the Secretary of Health, Education and Welfare is required or permitted to determine if there is a minimum quantity of the coal-tar color, designated as F. D. & C. Red No. 32, which can be used in adding color to the skins of mature oranges without danger of impairing the health of those who consume such oranges; and, if so required or permitted and if it be determined that there is such a minimum, should the Secretary [be required to] list and certify such color for such use.”
The third and last, as stated in the majority opinion [246 F.2d 860] is whether “if it be found that the coloring of oranges with Red 32 is not injurious to humans and can be continued with safety, further legislation will be required”.
I take up these questions in turn to say of the first that I not only find myself in complete agreement with the respondent’s position that the decision in the Certified Color case is in point, is correct, and should be followed here, but I find completely unconvincing the arguments of the majority in support of its contrary view, that the case is not in point. Indeed, it seems to me that the fact alone that the orange industry was not a party to the appeal in the Certified Color case is, from the standpoint of that case as a precedent, as completely insubstantial as the classic difference claimed to exist between a white and a black horse case.
In short, the test of what was at issue and decided in, and what was the effect of, the decision in the Certified Color case, as compared to this one, is to be found in a resort to the opinion in that case. Such a resort will show that the precise question here argued, the meaning and effect of the statute, was determined not with particular reference to the nature and character of the business of particular appellants but upon the basis of a construction of the present statute as compared to former statutes, in the light of the decisions construing and applying them. With deference, the majority has completely misread and misapplied the statement in the opinion in the Certified Color case, 236 F.2d at page 871, “Thus the problem is far different from the one presented recently to Congress when the act was amended to permit the use of Red 32 on orange skins not intended for processing (Emphasis supplied.)
In making this statement, the court was not, as the majority in this case seems to think it was, stating that, as applied to oranges, the construction of the statute under review and the duty of the secretary under it would be different from the construction of the statute and the duty of the secretary as applied to products generally. In making the statement the court was stating correctly that, viewed from the standpoint of legislative relief by amendment, the problem presented was different from the one presented to the secretary in proceeding under, and the courts in construing, the statute before it was amended. The court was not at all suggesting that the existing statute gave the secretary any different discretion or authority in respect to oranges than in respect to other products. To have so held would have been in effect to hold that the statute under review here gave the secretary authority in his discretion to consider and determine, product by product, whether he could and should establish tolerances, and this in the face of a statute containing no such language and differently construed both by the Executive and the Legislative branch.
In its treatment of the second question, the majority, acting under the influence of the same idea which dictated its rejection of the result and the reasoning in the Certified Color case, that the *864situation and needs of the Texas and Florida orange industry make a special case out of their complaint and require a construction of the statute based not upon the language used but upon general legislative considerations as to what such an act ought to provide, draws for the support of its view upon the Lexington Mill case, United States v. Lexington Mill & Elev. Co., 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658, decided under an entirely different statute, that of 1906, and containing entirely different provisions from those under construction here. It seems clear to me that no sound reason is presented, and no support is found in either the language, the legislative history of the statute under construction, or the authorities cited, for the view of the majority that the Secretary’s finding, quoted fully with approval in the Certified Color case, 236 F.2d at page 871, was wrong and must be set aside.
Finally, while the answer of the majority, to the third and final question, whether the needs of the industry can be taken care of without additional legislation, that it can be, follows naturally enough from what has gone before, it seems clear to me that it is nothing more than a complete tour de force, the substitution of judicial for congressional legislation. Though the Executive and Legislative branches of the government have determined that the 1956 amendment to Sec. 402(c) was necessary in order to give the secretary the power to determine tolerances as to coal tar products, the court, differing with both, has held that it can and should by its order in effect say; “We will construe the statute, and by order give effect to our construction, so as to make unnecessary, indeed useless, the 1956 amendment or any future congressional legislation.’’1 With the Secretary thus panoplied in the judicial fiat as to his authority under the statute before its amendment, and compelled by the judicial order to give that fiat effect, Congress, the Secretary and the Texas and Florida Industries need trouble themselves no more, but, resting securely upon this judicial legislation and order, they may all go about their business in the future untroubled and undisturbed.
It is one thing for a court to construe a statute. It is quite another for it to rewrite it. I respectfully Dissent from what I regard here not as a construction but a rewriting of the statute.
Rehearing denied:
HUTCHESON, Chief Judge, dissenting.