(dissenting).
I cannot' agree with the opinion of the majority. Briefly stated, my view is as follows.
It seems clear to me that the so-called “entry fee” imposed by the Secretary of Agriculture was not authorized by any Act of Congress and therefore was levied in violation of Article I, Section 8, Clause 1 of the Constitution, which vests, not in the Executive Branch of the Government, but in Congress, the “Power To lay and collect Taxes, Duties, Imposts and Excises.” It cannot be denied that the “entry fee” was a duty or an impost. It was not intended or paid as compensation for services rendered by the Government in connection with plaintiff’s importation of sugar; it was exacted from no importer of sugar except an importer of sugar from the Dominican Republic.
Only Congress can levy a duty or impost. No executive officer can do so unless Congress has delegated such power to him.
Further, the avowed purpose of the exaction of the “entry fee” was to regulate commerce in sugar between this country and the Dominican Republic. Article I, Section 8, Clause 3 of the Constitution vests this power in the Congress. The President or the Secretary of Agriculture may act in the field of foreign commerce only pursuant to an authorization by Congress.
The proposition that the imposition of the “entry fee” was justified because done in furtherance of the plenary authority of the President to conduct the foreign affairs of this country needs only the comment that, in doing so, he cannot usurp the powers committed to the Congress by the Constitution.
The “entry fee” cannot stand, therefore, unless Congress authorized the President or the Secretary of Agriculture to levy it. . The majority opinion holds that this authority was given by the Act of July 6, 1960, 74 Stat. 330, which further amended the Sugar Act of 1948, as amended, 7 U.S.C. §§ 1100-1161 (1958).
Section 3(b) (1) of the Act of July 6, 1960, authorized the President to determine the Cuban quota for the importation of sugar into the United States. If his determination created a deficit in the domestic sugar supply, he was authorized to meet the sugar requirements of American consumers by permitting the importation of sugar, “at such times and from such sources, including any country whose quota has been so reduced, and subject to such terms and conditions as he deems appropriate under the prevailing circumstances,” not in excess of the reduction in the Cuban quota. [Emphasis supplied.] It is said the italicized language gave the Secretary the right to. impose the “entry fee.”
In my opinion, an intention by Congress to surrender or delegate the exclusive prerogative committed to it by the Constitution, of levying duties and imposts, must be manifested by explicit language. I do not think that such an intention can be gathered from general language, authorizing the President to impose terms and conditions.
I suppose that all would agree that this general language was not intended to give the President authority to thwart the purpose of Congress in enacting the statute. Nor would anyone deny that any term or condition imposed by the President must be within the scope of the Congressional purpose in passing the Act and must further that purpose. Plainly, Congress did not intend to give the President authority to do anything not germane to that purpose.
What was the purpose of Congress in enacting this legislation ? It was to give the President authority to impose sanctions on Cuba by reducing its sugar quota and to eliminate any deficit in the *638supply of sugar resulting therefrom. That was the whole purpose. Whatever term or condition that might be imposed by the President could not go outside the boundaries of that purpose.
There is nothing expressed in the Act, or to be implied from it, that indicates an intention to impose sanctions on any country other than Cuba. But, if such an intention can be read into the statute, upon whom is the sanction to be imposed ? There were 14 countries with sugar quotas, from which the so-called “replacement sugar” was to be obtained; upon which one were sanctions to be imposed? We cannot, I suggest, find anywhere an authority to single out the Dominican Republic or any other country as the object of economic sanctions. That the imposition of the “entry fee” on Dominican sugar was done for the purpose of imposing such sanctions on that nation is not' open to question. The stipulation of facts makes this clear.
Congress had no intention of imposing sanctions on any country other than Cuba. Indeed, the legislative history of this Act indicates that Congress considered and expressly declined to impose sanctions on the Dominican Republic.
Congress did not' explicitly authorize the device of an “entry fee.” In particular, it did not authorize the President to impose it on the imports of one of the 14 countries and not on the others. It was imposed without Congressional authority. It was an usurpation of the authority of Congress to impose duties and imposts and of its authority to regulate commerce with foreign nations.
In the Act, the authority to impose terms and conditions on the importation of “replacement” sugar, to supply the deficit in Cuban sugar, was subject to a proviso that set out explicitly and in great detail how this deficit was to be met. The President was first required to allocate a portion of the deficit to domestic producers of sugar; second, to countries having a quota from 3,000 to 10,000 tons, he was required to allocate enough to bring their quotas up to 10,000 tons; third, he was required to allocate 15 percent of the remainder to the Republic of the Philippines; and he was then required to prorate the balance among other quota countries in proportion to their quotas.
Thus, an importer of sugar from the Dominican Republic was entitled under the Act to import an amount of sugar, in addition to the Dominican Republic’s preexisting quota, in the proportion that that quota bore to the combined quotas of all other quota countries, except the Philippines. The President had no power to deprive an importer of this right, as the majority admits.
As the Executive Branch administered the statute, every quota country was given this right, save only the Dominican Republic. The sugar imports of this country alone were subjected to the payment of an “entry fee.” Not only did this requirement lack Congressional authority, it was also directly contrary to the Congressional intent. That plainly expressed intent was that imports of replacement sugar from the quota countries, including the Dominican Republic, should be proportionate to their quotas.
The President had asked for authority to assign replacement sugar to such countries as he might select, but Congress expressly refused to give him such authority. It required, by the express terms of the Act, that imports of replacement sugar should come from all quota countries. The Dominican Republic was one of the countries having a sugar quota. Congress required that the replacement sugar should come from that country, in an amount prescribed by a stated formula.
But the President ruled, through the Secretary of Agriculture, that' even though such sugar could be imported, the importer could do so only by paying an “entry fee.” Was this carrying out the intent of Congress ? On the contrary, it was a restriction of it, a limitation upon if. It impeded, rather than furthered, the Congressional will. Under the statute passed by Congress, imports *639from the Dominican Republic were placed on a parity with imports from other quota countries. This means that an importer from that country could buy sugar there and sell it here at the United States price, which was generally about two cents a pound above the world price. But, contrary to the Congressional intent, the President required the importer to pay a “fee” that deprived him of the benefit of the United States price before he was permitted to bring in any sugar at all.
I do not think that anyone can doubt that this was a restriction and a limitation upon imports of replacement sugar from the Dominican Republic, imposed in the face of a clearly expressed Congressional intent that such imports should be unrestricted and unlimited, to the extent of that country’s pro rata share. What power had the President so to limit, so to restrict the will of Congress? From what' source was such power derived? The imposition of this fee was an usurpation of the powers committed to Congress by the Constitution.
I respectfully dissent.