*316Dissenting Opinion
Richardson, Judge:On April 19, 1955, plaintiff imported into the United States 219,973 pounds of shelled peanuts. In addition to the regular duty of 7 cents per pound to which the imported peanuts were subject, by virtue of the provisions of 19 U.S.C., section 1001, paragraph 759 (par. 759 of the Tariff Act of 1930), the collector of customs assessed and collected a fee of 2 cents per pound. No question has been raised as to the regular duty, but plaintiff, by this protest, challenges the legality of the exaction of the additional fee of 2 cents, which was made under the authority of Presidential proclamation 3084 of March 9, 1955 (T.D. 53755) (69 Stat. ch. 22). This proclamation was issued under the authority of section 22 of the Agricultural Adjustment Act, as amended (7 U.S.C. § 624), which authorized the President of the United States to impose by proclamation “such fees ... or such quantitative limitations” on the amount of peanuts that may be entered or withdrawn from warehouse, for consumption, if such limitations or fees are found to be necessary to prevent an influx of imported peanuts in quantities sufficient to render or tend to render ineffective, or materially interfere with the domestic crop limitation program of the Department of Agriculture. Authority to modify a proclamation or any provision thereof whenever the President finds or proclaims that changed circumstances require such modification in order to carry out the purposes of section 624 is also granted in subparagraph (d), which reads as follows:
(d) After investigation, report, finding, and declaration in the manner provided in the case of a proclamation issued pursuant to subsection (b) of this section, any proclamation or provision of such proclamation may be suspended or terminated by the President whenever he finds and proclaims that the circumstances requiring the proclamation or provision thereof no longer exist or may be modified by the President whenever he finds and proclaims that changed circumstances require such modification to carry out the purposes of this section.
Pursuant to the authority granted the President in 7 U.S.C., section 624(b), to “impose such fees not in excess of 50 per centum ad valorem or such quantitative limitations on any article or articles which may be entered, or withdrawn from warehouse, for consumption as he finds and declares” necessary to effectuate the purposes of the statute, Presidential proclamation 3019, establishing an annual peanut import quota of 1,709,000 pounds, was issue on June 8, 1953. It is admitted that the prescribed statutory procedures were strictly followed in connection therewith. Subsequent to the issuance of this proclamation, a severe drought in two of the major peanut-producing areas caused a great reduction in the production of domestic peanuts. The Tariff Commission, on its own motion, pursuant to a reservation contained in its report to the President in 1953, upon which he acted in issuing proclamation 3019, instituted an investigation into the peanut situation, supplemental to the investigation which it conducted in 1953, for the purpose of making recommendations to the President as to whether or not additional peanuts should be permitted to be imported. Public notice was given that “. . . The Commission has received information indicating that the entry of an additional quantity of peanuts during the current quota year may be necessary to meet essential requirements of domestic peanut users. The purpose of this supplemental investigation is to determine whether there is such need for an additional quantity of imported peanuts, and, if so, what additional quantity might be permitted to be entered during the current quota year without materially interfering with or rendering ineffective the peanut program of the Department of Agriculture.” Hearings were held, in which plaintiff participated through its representative, A. S. Yohalem (exhibit 2B (vol. 2), p. 324), and, on the basis of the investigation and hearings, the Tariff Commission recommended to the President that, during the remainder of the 12-month period, beginning July 1, 1954, *317imported peanuts should be admitted subject to a fee of 8 cents per pound but not more than 50 per centum ad valorem on 48,000,000 pounds and subject to a fee of 4 cents per pound after 48,000,000 pounds had been admitted.
Thereafter, on March 9, 1955, the President issued Presidential proclamation 3084, which purported to modify proclamation 3019, by permitting the entry of 51,000,000 pounds (aggregate quantity) of peanuts “subject to afee of 8 cents per pound but not more than 50 per centum ad valorem.” [Emphasis supplied.] As has been stated, plaintiff imported peanuts under this proclamation, but challenged the authority of the collector to exact the 2-cent fee.
In the case of The Best Foods, Inc. v. United States, 39 Cust. Ct. 305, C.D. 1945, in which the writer of this dissent did not participate, the court sustained the claim made in the protest that the fee of 2 cents per pound was invalid. An order was entered directing the collector to reliquidate the entry and make refund accordingly. In the course of its decision, the court considered the meaning of the word “modify” and concluded that it “connotes a limitation, not an extension, of that which is modified,” and “not a major change, but an alteration only in the thing modified.” Applying this concept of modification to the action of the President in proclaiming the quota and fee provisions of proclamation 3084, the court found that while the imposition of the quota constituted a modification, the fee provision imposed a new burden and could not be considered in any sense as modifying proclamation 3019. In this rehearing, defendant contends that the court was in error in applying to the term “modify” such a narrow and restrictive meaning.
In view of the various judicial definitions indicating the contrary, I do not feel that the word “modify” necessarily connotes a limitation, and not an extension of that which is modified. The term is said to have many meanings and is to be interpreted “in the light of the context in which it is used.” 58 C.J.S. 840. It is true that the lexicographers, in some instances, define “modify” as meaning to reduce rather than to increase the thing modified, but the cases are numerous in which the courts, in interpreting the term, have not adhered to this restrictive meaning. A few citations will serve to illustrate the point.
In the case of Jarman v. Collins-Hill Lumber & Coal Co., 286 N.W. 526, 226 Iowa 1247, the power given to a commissioner to modify a workmen’s compensation award was said to be “the power to change, the power to increase as well as reduce, the arbitration award.” [Emphasis supplied.] Statutory authority of a district court to modify tax assessments, bn appeal, was held to authorize the court to increase as well as decrease the assessment, although statutory notice was not given in McGoldrick Lumber Co. v. Benewah County et al., 35 P. (2d) 659. In Evans v. Henson, 37 S.E. (2d) 164, 73 Ga. App. 494, an addition of sweetened, condensed milk to other items which plaintiff was allowed to sell under provisions of a written contract to serve as salesman for defendant, for which plaintiff was to receive a commission of only 3 per centum, together with addition of other territory to that specified in a written contract in which plaintiff was allowed to sell goods and receive commissions on his sales therein, was held effective as a “modification” of the written contract. In Black’s Law Dictionary, 4th edition, the word “modification” is defined as “a change; an alteration which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.” And the meaning given the word “modify,” in the same dictionary, is “to alter; to change in incidental or subordinate features; enlarge, extend; limit, reduce.” Accord, In Re Independent Consol. School Dist. No. 18, 63 N.W. (2d) 543. The court, in The Best Foods, Inc., case, supra, quoted from Webster’s New International Dictionary, second edition, as follows:
*318Modify * * * 2. To reduce in extent or degree; to moderate; qualify; lower; as, to modify beat, pain, punishment. * * * 4. To change somewhat the form or qualities of; to alter somewhat; as, to modify the terms of a contract. * * * [Emphasis supplied, except for word “modify.'’]
In the Evans v. Henson case, supra, a sales contract was modified by adding thereto an entirely new product and additional territory. Thus, it appears that even the lexicographic definition above quoted is broad enough to embrace the introduction of new elements into the thing being modified, since it uses the modification of a contract as an example to illustrate the definition given.
In the case of State Airlines, Inc. v. Civil Aeronautics Board, 174 F. (2d) 510 (reversed in Civil Aeronautics Board v. State Airlines, Inc., 338 U.S. 572), cited in The Best Foods, Inc., case, supra, the United States Court of Appeals for the District of Columbia, in a two-to-one decision, reversed an order of the Civil Aeronautics Board awarding to Piedmont Aviation, Inc., a certificate of convenience and necessity to engage in air transportation along routes which were said to have differed greatly from those sought by Piedmont. In applying for the routes, the applicant inserted in its application a so-called “catch-all clause” seeking the authority to transport along “the routes detailed herein, or such modification of such routes as the Board may find public convenience and necessity require.” The Civil Aeronautics Act empowered the board to issue certificates “authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly.” The United States Supreme Court, in Civil Aeronautics Board v. State Airlines, Inc., supra, said, “The Court of Appeals read this language as showing a congressional purpose to bar the Board from granting any certificates in which the routes awarded deviate more than slightly from the precise routes defined in the application.” In the light of this interpretation of the statutory provision, the Court of Appeals viewed the application filed by Piedmont and the routes awarded to it by the board, and, since the latter deviated greatly from the routes specifically requested by the applicant, concluded that Piedmont had not applied for the routes awarded or, in other words, that Piedmont’s application did not cover the routes awarded to it. It seems apparent that the meaning of slight alteration, toning down, and limiting, given to the term “modification” by the Court of Appeals, in applying the term to the action of the board, was directly influenced by Us interpretation of the language of the statute set out above. The only authorities relied on by the Court of Appeals for the restrictive meaning attributed to the term was a definition from volume VI of the Oxford English Dictionary (1933 edition) and a judicial interpretation of the word “modify,” as it was used in connection with certain divorce proceedings in the case of Linn v. Linn, 242 Ala. 688, 8 So. (2d) 187. In the Linn case, the Supreme Court of Alabama, acting under a statute authorizing an appeal from an order modifying a divorce decree, dismissed the appeal where the lower court had set aside the divorce decree. It must be assumed that the Court of Appeals was familiar with the various judicial constructions placed upon the terms “modify” and “modification” and that the definition adopted was selected because it accorded with the interpretation that the court felt the factual situation of the case required; a situation entirely different from that in the instant case. In fact, in the instant case, the modification of the quota phase of proclamation 3019 was an extension. The quota of 1,709,000 pounds was increased by an additional 51,000,000 pounds. The 1,709,000 pounds quota could not be “toned down,” further restricted, or reduced by adding 51,000,-000 pounds to it. It appears that the interpretation of the word “modify” by the United States Court of Appeals for the District of Columbia, in the case of State Airlines, Inc. v. Civil Aeronautics Board, supra, cannot be considered as determinative of the interpretation that should be given the term “modify” in the present proceedings.
*319Although the Supreme Court, in reversing the Court of Appeals, did not discuss the meaning of the term “modification,” it stated, in its opinion, at page 575, “We hold that Piedmont’s applications were sufficient to permit certification of Piedmont for the routes awarded,” and this statement, in our opinion, appears to negative, if indirectly, the finding of the Court of Appeals that the routes awarded Piedmont could not be considered a modification of the routes sought.
In the light of the foregoing cases and the many other cases defining “modify” and “modification,” the interpretation given the term “modify” in The Best Foods, Inc. v. United States, supra, is not required. The President could modify his proclamation within the four corners of section 22(d) and the part of section 22(b) which it incorporates by reference (7U.S.C. § 624(d)), and this included the imposition of a fee provided for in the section, even though the imposition of the fee was the addition of a new element. The imposition of a fee changed the mode in which the subject of proclamation 3019 (importation of peanuts) was dealt with, but did not change the subject itself, and this, too, has been said to constitute a modification. 58 C.J.S. 840. Therefore, we are of the opinion that the term “modify” is broad enough to embrace the imposition of a fee in the modifying proclamation, where only a quota had been proclaimed in the original proclamation. In modifying his original proclamation, the President could impose any condition which was open to him when he issued the original proclamation.
It is true that the notice of the Tariff Commission announcing the hearing to consider permitting the importation of an additional quantity of peanuts did not mention the imposition of fees. This subject developed at the hearings and was deemed necessary by the Tariff Commission to effectuate the purposes of section 22, one of which was to avoid interference with the peanut program of the Department of Agriculture. To say that since the public notice did not state that fees were to be considered as a condition to be imposed upon entering or withdrawing peanuts from a warehouse for consumption, the Tariff Commission could not consider fees, is to say that the Tariff Commissioners must first determine whether a quota or fee is feasible before they conduct their investigation, which ostensibly is to aid them in determining this matter. Also, the plaintiff was present and participated in the hearings before the Tariff Commission, through its representative, and the record does not indicate any objection on the part of its representative to the imposition of fees after the Commission ruled that the subject was properly before it. This case is distinguishable from Carl Zeiss, Inc. v. United States, 23 C.C.P.A. (Customs) 7, T.D. 47654; 76 F. (2d) 412. In the Zeiss case, the Tariff Commission was limited to the consideration of particular merchandise by a specific directive to the Commission contained in Senate Resolution 227, see Congressional Record, volume 75, part II, page 12550, to investigate “the differences in the cost of production between the domestic articles and the foreign articles, and to report, at the earliest practicable date, upon the following articles:
2. Optical instruments of a class or type used by the Army, Navy, or Air Force for fire control and parts thereof. [Emphasis added.]”;
the complainant received the notice of the Tariff Commission and did not attend the hearing, because it was not interested in the merchandise schedule for consideration according to the notice, and the Commission considered merchandise different from that in its notice and merchandise that complainant was interested in. In this case, the merchandise considered at the hearing by the Tariff Commission was the merchandise described in the Commission’s notice, and the complainant was present and participated in the hearing through its representative. (Exhibit 2B (vol. 2), p. 324.)
*320The preliminary steps to issuance of the proclamation had been completed before the President made his findings of fact as to changed circumstances. The Tariff Commission had held its investigation pursuant to its public notice. The Commission, after considering everything that was said at the hearings and the purpose of the statute, concluded that a limited quantity (48,000,000 pounds) of peanuts should be permitted to be entered, or withdrawn from warehouse for consumption, subject to a fee of 2 cents per pound and that an unlimited quantity above 48,000,000 pounds should be permitted to be entered, or withdrawn from warehouse for consumption, subject to a fee of 4 cents per pound, during the remainder of the 12-month period beginning July 1, 1954. (Exhibit 2G, pp. 3-4).
The President took the first part of the recommendation of the Tariff Commission providing for a quota of 48,000,000 pounds of peanuts subject to a fee of 2 cents per pound and raised the quota to 51,000,000 pounds of peanuts subject to a fee of 2 cents per pound. He rejected the balance of the recommendation providing for an unlimited quantity above the quota of 48,000,000 pounds. The President was not bound by the Commission’s findings, but was even free to arrive at his conclusions from information derived from other sources. Foster v. United States, 20 C.C.P.A. (Customs) 15, T.D. 45673.
The intention of the President that the additional peanuts were not to be imported, except upon the payment of a fee of 2 cents per pound, was clearly indicated in the following portion of proclamation 3084:
Whebbas, on the basis of the said supplemental investigation and report of the Tariff Commission, I find that changed circumstances require the modification of the existing quota restrictions on peanuts * * * so as to permit the additional quantity of peanuts hereinafter described to be entered, or withdrawn from warehouse, for consumption during the remainder of the quota period ending June 30, 1955, subject to the fee hereinafter -proclaimed; and
Whereas, I find and declare that the entry, or withdrawal from warehouse, for consumption of such additional quantity of such peanuts subject to such fee will not render or tend to render ineffective, or materially interfere with, the said program of the Department of Agriculture with respect to peanuts, nor reduce substantially the amount of products processed in the United States from peanuts with respect to which such program is being undertaken:
Now, therefore, I, Dwight D. Eisenhower, President of the United States of America, acting under and by virtue of the authority vested in me by the said section 22 of the Agricultural Adjustment Act, as amended, do hereby proclaim that the said proclamation of June 8, 1953, as amended by the said proclamation of June 30, 1953, is hereby modified so as to permit the entry, or withdrawal from warehouse, for consumption during the remainder of the 12-month period beginning July 1, 1954, of not more than 51,000,000 pounds (aggregate quantity) of peanuts, shelled, blanched, salted, prepared, or preserved (including roasted peanuts, but not including peanuts not shelled or peanut butter), of sizes averaging in representative samples more than 40 kernels per ounce, subject to a fee of $ cents per pound but not more than 50 per centum ad valorem: Provided, That the said fee shall be in addition to any other duties imposed on the importation of such peanuts. [Emphasis supplied.]
It is evident, therefore, that the fee provision is an integral part of the scheme permitting entry of additional peanuts. The President found that the entry of additional peanuts subject to such fee would not render ineffective or interfere with the peanut program of the Department of Agriculture. The President’s judgment in this regard may not be judicially reviewed. United States v. George S. Bush & Co., Inc., 310 U.S. 371. The court cannot assume that the President would have found that entry of additional peanuts, without payment of a fee, would have had no injurious effect on the peanut program. It follows that if the fee provision is stricken from the proclamation, the intent of the President to permit the entry of the additional quantity of peanuts only subject to a fee, is rendered ineffective.
*321Plaintiff contends that the word “or” in the phrase “such fees ... or such quantitative limitations . . .” in subparagraph (b) of section 624 is a disjunctive marking an alternative, and, therefore, the President did not have the authority to impose simultaneously a quota restriction and a fee. Defendant contends that section 22 is a remedial statute in which “or” should be interpreted broadly to mean "either or both,” so as to achieve flexibility in application of the remedies to the problem. It is noted that the Report of the House Committee on Agriculture states “. . . the bill amends section 22 so as to permit the President, upon the recommendation of the United States Tariff Commission, to impose either an importation fee or an importation quota, whichever under the circumstances is determined to be better adapted for the protection of any particular farm program”; and that a participant in the hearings, Stephen Pace of Americus, Ga., who appeared on behalf of all of the organizations of peanut growers in the United States and all of the peanut shellers in the United States (and who was a Congressman from the Third Congressional District of Georgia and a member of the House Committee on Agriculture at the time the Committee report was submitted on the bill to amend section 22 permitting the imposition of a fee), wanted the imposition of a quota and a fee, and the Department of Agriculture insisted that it be recorded as being of the opinion that a quota and a fee were possible. (Exhibit 2B, vol. 3, p. 541.) There is no discussion by either party of the reference to “fees and limitations imposed by the President by proclamation under this section [22]” [emphasis added] in subparagraph (c). Without deciding whether the President could or could not impose a fee in addition to fixing a quota, it is freely conceded by the majority of the Tariff Commission and by the Department of Agriculture that he could do either. The fee provision may not be deleted from the proclamation as a severable part thereof, and if, as plaintiff contends, the fee provision is invalid, the quantitative provision must fall with it, and plaintiff’s case would be destroyed.
Regardless of the argument advanced tiiat the plaintiff’s right to import peanuts stems from its status as a citizen, the right to import the particular peanuts involved in this action was derived solely from proclamation 3084. Proclamation 3084 was issued pursuant to a proper delegation of legislative power to the President by the Congress of the United States and has the same status as a statute or law passed by that body and is subject to the same rules of construction. When part of a proclamation is determined to be illegal, ultra vires, and, hence, void, “the test of validity of the remainder to be applied in such a case would appear to be the same as that applied in eases of partial invalidity of statutes due to unconstitutionality. . . .” United States v. Bitumuls & Asphalt Co. et al, 44 C.C.P.A. (Customs) 199, 206-207, C.A.D. 661. The situation before the court in this case is similar to that involved in George G. Wislar v. United States, 26 C.C.P.A. (Customs) 138, C.A.D. 7, cert. den., 305 U.S. 629, where the constitutionality of a proviso in the Reciprocal Trade Agreements Act of 1934 was under attack. The act gave authority to the President to enter into foreign trade agreements and to proclaim the modification of existing duties required to carry out such agreements, said proclaimed duties to apply to imports from all foreign countries, provided, however, that the President might suspend the application to the imports from any country because of its discriminatory treatment of American commerce. Pursuant to this act, a reciprocal trade agreement was entered into with Sweden, according to which, among other things, the duty on files was reduced from 77% cents to 45 cents per dozen. Thereafter, the reduced rates were suspended as to Germany, because of discriminatory practices, and the collector assessed duty on files imported from that country at the higher rate provided in the tariff act. Plaintiff protested, claiming that that portion of the *322Reciprocal Trade Agreements Act which attempted to empower the President to suspend the generalization clause making trade agreement rates applicable to all countries was unconstitutional. The court noted, in its opinion (p. 141):
It is thus to be seen that appellant does not attack the constitutionality of the Reciprocal Trade Agreements Act as a whole. Upon the contrary, his entire case rests upon the validity of the authority conferred upon the President to negotiate trade agreements plus the validity of the generalization clause, except the proviso thereto, which proviso clearly is an integral part of that clause separated from it only by the usual punctuation mark- — -a colon. Of necessity, appellant must uphold the validity of the authority granted and the validity of the affirmative portion of the generalization clause or his case falls.
In the final analysis, as we view the controversy, the question which first must be determined is whether the provision of the act which appellant invokes to support his claim and the provision thereof which he attacks are separable, so that appellant may invoke the one and, at the same time, attack the other. If not separable, there is an end to the controversy; if separable, then other issues must be considered.
The court found that the proviso was not separable, on the ground that it was not the intent of Congress that it be divisible from the generalization clause; that the entire purpose and spirit of the Reciprocal Trade Agreements Act negatived such an intent; and that the proviso, if dissevered from the rest of the act, would be practically meaningless. The court stated, further, that appellant’s contention that the generalization clause operated, by reason of the agreement with Sweden, to repeal the Tariff Act rate of duty, could be sustained only by holding the proviso separable and unconstitutional, while, at the same time, declaring the validity of the other portion of the clause. The court held that this might not be done, and that, since a holding that the entire clause, or the entire act, was unconstitutional would utterly destroy appellant’s case, it was not called upon to consider that question.
In Ernest E. Marks Co., a Corporation v. United States. 28 C.C.P.A. (Customs) 286, C.A.D. 156, cert. den., 313 U.S. 584, appellant contended that subsection (a) of the Reciprocal Trade Agreements Act was constitutional, but that subsection (b) was not. The court said (p. 293):
... If the act as a whole unlawfully delegates to the President legislative authority, it logically follows the the entire act must fall as being unconstitutional. This would include the generalization clause upon -which appellant relies as the basis for its recovery in this litigation. Since the appellant depends upon a portion of the act for its relief and since the act is either constitutional or unconstitutional as a whole, appellant cannot successfully argue that the act is constitutional for one purpose and unconstitutional for another. Therefore, it seems to us that as far as granting relief to appellant is concerned, it must necessarily follow that if the act is constitutional, appellant is not entitled to any relief, under our interpretation of the same, and if it is unconstitutional, the generalization clause falls and appellant has no basis for the assertion of the right claimed under the Trade Agreements Act.
In the instant case, plaintiff’s contention may be sustained only by holding the fee provision separable and invalid while at the same time declaring that the balance of the Presidential proclamation is valid. For the reasons stated, this may not be done.
Even if it be assumed that the provisions of Proclamation 3084 are divisible, it is not possible to determine whether the President would choose the quota or the fee to be operative, and this court certainly cannot make the determination for him. To do so, would be to usurp the function of the President and to substitute our judgment for his. This we cannot do. The choice would be for the President alone to make.
*323I do not share the view that plaintiff was without a remedy, except the one pursued. In the writer’s opinion, the declaratory judgment statute was designed to provide relief in just such a ease as this one. 28 U.S.C., section 2201, provides as follows:
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
This statute permits the pacifying ministration of an adjudication where a complainant’s “legal interest,” as here, is rendered uncertain or insecure by proposed acts of the Government. The cases cited by the plaintiff, in its brief in support of its contention that a suit for a declaratory judgment was not available to it, have reference to controversies expressly excepted from the declaratory judgment statute or to instances in which an alleged “wrong” has been committed, damages have been incurred, and the Government has not given its consent to be sued. I concur with the majority of the court that, in the involved matter, the Government has consented to be sued under section 514 of the Tariff Act of 1930. The declaratory judgment act does not enlarge this jurisdiction of the court, but merely provides an additional remedy in order to remove an uncertainty and afford speedy relief. Raydist Navigation Corporation, Plaintiff v. United States of America, Defendant, 144 F. Supp. 503; Borchard’s Declaratory Judgments (2d ed., 1941) page 927, et seq. It is an action in which the court may order a speedy hearing and advance it on the calendar where circumstances warrant. Plaintiff could have filed its suit for a declaratory judgment immediately upon contracting for the peanuts, without waiting for their arrival and the payment of the fee.
It is not deemed necessary to discuss the contention in plaintiff’s protest that “. . . the establishment and assessment of the fee in these cases, and the provisions of the Act if construed to authorize the fee are a violation of the Constitution of the United States and a deprivation of property without due process of law.”
For the reasons stated, I would overrule the protest.