(dissenting).
The marketing order in controversy was issued under the authority conferred upon the Secretary of Agriculture by section 8c(5) of the Agricultural Marketing Agreement Act of 1937, as amended. 7 U.S.C.A. § 608c(5). If authority for its provisions cannot be found there, then it is conceded that the order is illegal.1 That subsection begins by specifying that an order issued under its sanction shall contain only those “terms and conditions” which are specified in the detail of its text. The provision thought to be relevant here appears in subsection 8c(5) (A) and authorizes the fixing of certain minimum prices “which all handlers shall pay * * * for milk purchased from producers * * *.” An additional reference to the same subject matter in subsection 8c(5) (C) does not require any separate or additional comment.
The complaint here is that a marketing order under section 8c(5) (A) and (C) has made the plaintiffs, as handlers of milk, accountable to the general producer-settlement fund for milk produced by their own cows on their own farms. The question of statutory construction is, in what meaningful sense can it be said that there has been a “purchase” of milk by a “handler” from a “producer” where an individual both produces and handles his own milk?
I would agree with the result the court reaches if I could find a satisfactory affirmative answer to this question, but I can find none. The opinion of the court quotes the old and properly repeated admonition of the Supreme Court that “in expounding a statute, we must not be guided by a single sentence or a member of a sentence, but look to the provisions of the whole law, and to its object and policy.” See N. L. R. B. v. Lion Oil Co., 1957, 352 U.S. 282, 288, 77 S.Ct. 330, 334, 1 L.Ed.2d 331, quoting from United States v. Boisdore’s Heirs, 1850, 8 How. 113, 122, 12 L.Ed. 1009. In relating this language to the present situation the court demonstrates most persuasively that it is equitable and advances the overall scheme and purpose of the Act to regulate producer-handlers as has been done in Marketing Order No. 27. But if Congress has used restrictive language in the relevant operative provision of a statute, resort to the overall purpose of the legislation does not in my view justify relaxing a stated restriction in a way inconsistent with any reasonable construction of the restrictive language itself.
Here the operative language of the statute authorizes certain impositions upon handlers of milk who purchase from producers, and nothing more than that. It seems to me that no reasonable construction can make the “purchase” concept cover the conduct of persons who as handlers simply process and distribute milk they have produced on their own farms.
I am not unmindful that in United States v. Rock Royal Co-Operative, Inc., 1939, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446, the Supreme Court held that a cooperative handling milk acquired from individual producers who are members of the cooperative is a “purchaser” from these .members, whether the cooperative is of a “sale” type or an “agency” type. But the Court caused this decision to turn upon the fact that Congress had made subsection 8c(5) (F) expressly applicable to both types of cooperatives, thereby indicating that no distinction should be made between types of cooperatives in the companion subsections 8c (5) (A) and (C). But the special treatment of cooperatives in section 8c (5) does not in my view afford any basis for the present interpretation of “purchase” in a case involving merely one individual *620who produces and handles his own milk as distinguished from a cooperative which handles milk for its several members.
Perhaps Congress overlooked the fact that the language it used excluded the individual who handles his own milk. Perhaps, advised of this restriction, Congress would wish to broaden the statute. Certainly, the argument of the government to us and the opinion of this court make a strong case for doing so. But I am unable to avoid the conclusion that by judicial decision we are now giving the Secretary of Agriculture authority which the statute as enacted by Congress withheld. I cannot reconcile such action with my understanding of the restricted role our polity assigns to courts in construing and applying statutes. Therefore, I regretfully dissent from a decision which may well be very helpful to the orderly and effective regulation of a vital industry.
. Here, different from United States v. Lehigh Valley Cooperative Farmers, Inc., 3 Cir., 287 F.2d 726, neither the Secretary of Agriculture nor the court has undertaken to justify the order under the “incidental” and “necessary” powers conferred upon the Secretary by subsection 8c (7) (D). Nor do I see how regulation of milk not purchased could fairly be described as incidental and necessary to the regulation of milk that is purchased.