(dissent ing.)
It may be that in • dissenting here, I am the proverbial man who “convinced against his will1 is of the same opinion still”. I hope not. As I see this case, the basis of the plaintiff’s claim is entirely different from that of Dismuke’s. There it was conceded that Congress had intended to make, and .-had made, provisions, as a claim of right, for Civil Service retirement annuity of the kind for which plaintiff was suing. Here the fundamental position of the Government is that the whole matter involved was on a volunteer basis. It insists that the invoked section creates “no claim in favor of any producer in the sense that it gives him a right to demand the payment to him of a specific sum of money from the public treasury merely because he elects voluntarily to follow a sound conservation program on his land”, and “nothing in the *523announcement by the Secretary gave the appellant a right to demand a conservation payment”. I agree with this position, and, agreeing, I think the district judge was right in dismissing the complaint for want of jurisdiction as not founded upon a contract, express or implied, under the Tucker Act.
I agree, too, with the reason given by the district judge for dismissing the case, that whether there was a right to a conservation payment and the amount of it were facts whose determination by the Secretary were put by the statute beyond review.
The two cases cited by the majority as authority for their view do not support it. In neither of those cases was the jurisdictional question here presented, decided, or considered. Both of them were decided by specially constituted tribunals whose jurisdiction did not extend to questions of the kind presented here. In the Illinois Packing Co. case, a decision by the Emergency Court of Appeals, the sole question was the jurisdiction of this special court of appeals. Nothing was said about the question at issue here. If anything had been said about it, it would have been bound to be dicta.
The quotation from Mayo’s case is no better authority. That was not a suit, as here, under the Tucker Act, to enforce a claim for subsidy payments. That was an appeal from a special three judge court of strictly limited jurisdiction to enjoin state officers from enforcing against the United States the provisions of the Florida fertilizer law. The language quoted from that case in the majority opinion must be read in the light of the issues there presented. In using it, the Supreme Court was not intending to decide, it did not decide, indeed it could not have decided, the jurisdictional question raised here.
There is another reason, mot assigned by the district judge, but called attention to in the majority opinion, why the case should have been dismissed. This is because, assuming that the statute did create a suable right, the suit filed here was premature. As set out in the majority opinion, the statutes, under which the allowance was made, provided for final review by the Secretary of Agriculture of the “facts constituting the bases for any payment or grant or the amount thereof * * Neither the petition nor the exhibits attached to it show that the Secretary has made, or has attempted to make, a final determination in the case. I respectfully dissent from the judgment of reversal.
United States v. Dismuke, 5 Cir., 76 F.2d 715. Affirmed “for reasons stated in this opinion and not those stated in the opinion of the court below”, Dismuke v. U. S., 297 U.S. at page 174, 56 S.Ct. at page 404, 80 L.Ed. 561.