(dissenting in part).
I regret I am unable to concur in all of the opinion. I am in agreement with the conclusion that recent decisions of the Supreme Court impel a finding that the Sugar Act is constitutional. I likewise agree that the case is not moot, but I dissent from so much of the opinion as holds that “ability to market” is an “alternative” standard as to which Congress has delegated discretion to the Secretary of Agriculture in making marketing allotments. I regard the question as of importance in principle, and for that reason I shall state my views briefly.
The opinion approves the action of the Secretary in adopting only two of the three standards established by the Act and in excluding from consideration the third, namely, present ability to market. Both appellants were denied allotments, not because they failed to make the proper showing of ability to market, but solely because the Secretary had decided to ignore that standard and to make all allotments exclusively on the basis of past records in recent years, a standard under which they could not qualify. In my opinion, Congress intended the Secretary to use all three standards to accomplish the “equitable allotment” provided for in the Act. My reasons are these:
Before the enactment of the Sugar Acts, every citizen had the lawful right to ’enter the business, to process sugar, and to sell it to the general public. This privilege arose out of the inherent right — the common right — of the citizen to cultivate the ground, to purchase products, or to sell them, to carry on trade, or to maintain himself or his family by free industry. The effect of the 1937 Act, as construed by the Court, is to diminish in some cases *201and in other cases to destroy these rights, for it is decided here the Secretary may in his discretion restrict the marketing o£ sugar in continental United States to existing processors unless he chooses to adopt the congressional formula which will admit the new. Undoubtedly, world-wide conditions affecting price and marketing of agricultural products have made it desirable that a plan be adopted to bring supply and demand within reasonable relationship to one another, but the establishment of a monopoly, the exclusion of one class in favor of another, the allowance, by authority, to any one class of persons or corporations of the sole right to market a particular agricultural product, whereby other persons are restrained of the freedom or liberty they had before and thus hindered in their lawful business, are so fundamentally opposed to American concepts of liberty as not to be accepted without legal compulsion. The brief for the Secretary naively suggests that “the 69 processors who received allotments are not complaining”. And this is not surprising, for since the qiiota was insufficient to give a 100 per cent allotment to all, it is hardly to be expected that those within the favored circle should be anxious to extend its borders to include the rejected. But this does not answer the question, for appellants are being deprived of a right. Even assuming the power to destroy this right, it by no means follows that the general government would exercise it without impelling necessity and without expressing the purpose in language so clear as to leave no manner of doubt. I, therefore, think this interpretation of the statute ought not to have our approval, unless the language makes it plainly obligatory. So far as I know, there has yet been no change in the rule that a statute which limits a common right or limits participation by the citizen in lawful industry is to be strictly construed. The rule was stated by Chief Justice Marshall in these words: “That the consequences are to be considered in expounding laws, where the intent is doubtful, is a principle not to be controverted; but it is also true, that it is a principle which must be applied with caution, and which has a degree of influence dependent on the nature of the case to which it is applied. Where rights are infringed, where fundamental principles are overthrown, wdiere the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” United States v. Fisher, 2 Cranch 358, 389, 390, 2 L.Ed. 304.
And the same principle was recognized and applied as late as 1906 in the case of Texas & Pacific Railway v. Abilene Cotton Oil Company, 204 U.S. 426, 437, 27 S.Ct. 350, 354, 51 L.Ed. 553, 9 Ann.Cas. 1075, where the Court said: “ * * * a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the pre-existing right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory”. And see, to the same effect, Lewis Sutherland on Statutory Construction, Secs. 542, 546; Commonwealth v. Beck, 187 Mass. 15, 72 N.E. 357; Stamford v. Fisher, 140 N.Y. 187, 35 N.E. 500; State v. Dauben, 99 Ohio St. 406, 124 N.E. 232, 233. In all, the rule is recognized that statutes “which restrain the exercise of any trade or occupation, or the conduct.of any lawful business, or which impose restrictions upon the use, management, Control, or alienation of private property, will be strictly construed”, and will not be extended to include restraints or limitations not clearly prescribed. We ought not, therefore, in reading the Act, to attribute to Congress the adoption of a subtle purpose to subject the property of one citizen to disuse and abandonment for the advantage of another. Considered in this aspect, we think the least that can be said is, that the language of the Act casts doubt on the correctness of the construction. In express words it admonishes the Secretary: “to afford all interested persons an equitable opportunity to market sugar * * * by allotting to persons who market or import sugar * * * in such manner and in such amounts as to provide a fair, efficient, and equitable distribution of such quota or proration thereof, by taking into consideration * * * processings * * * past marketings * * * on the ability * * * to market * * * 7 U.S.C.A. § 1115.
I am not unmindful of the fact that the Act contains no specific reference to per^ sons who propose to market nor sets aside a definite percentage of the quota to new producers, but it seems clear to me that th,e words — fair, efficient, and equitable *202taken in their ordinary meaning, contemplate no deadline at which new enterprise is halted. Moreover, such an absolute prohibition is, I think, inconsistent with the recent congressional agricultural marketing-program as embodied in 'the Bankhead Cotton Act, 48 Stat. 598,1 *the Potato Act of 1935, 49 Stat. 782,2 and the Agricultural Adjustment Act of 1938, 52 Stat. 31, 7 U.S.C.A. § 1281 et seq. The purpose in these laws, as is true of the sugar law, was to limit production and sale of agricultural .products within the probable consumer demand, and to this end to allot to farms an equitable portion of the quota and to penalize sales in excess of the allotment, and the Supreme Court has held this to be a constitutional exercise of congressional power. Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092. But in all the Acts provision is made for allotments to persons on farms not previously used in the production of the particular thing controlled. In the Bankhead Act a fixed percentage of each State’s quota was set aside for persons of this class;3 the same is true of the Potato Act ;4 and in the Agricultural Adjustment Act of 1938 marketing quotas are to be allotted for tobacco, corn, wheat, cotton, and rice to new farmers in these crops;5 and in the Sugar Act itself the Secretary is required to protect the interests of new producers in so far as practicable in apportioning farm shares under Title III. 6
Thus, as I think, the agricultural program, considered as a whole, shows the design and purpose of Congress to regard the rights and interests of new producers and, though there is no express reference in the Sugar Act to the part of the quota to be given new processors-marketers, thére is the statement of congressional purpose “to afford all interested persons an equitable opportunity to market sugar”, and to this end the standard of “ability to market” is set up for application by the Secretary; all of which, I think, indicate the congressional purpose to include newcomers in some equitable division of the whole, and apply the alternative standard where the applicant has no past record in the field, but can show his ability.
So considered, and having regard to the rule of statutory construction which I have discussed, I think it clear that no purpose or intention of Congress is shown to authorize the exclusion of a person solely because he had neither processed nor marketed sugar over a fixed period of time prior to the allotment. I think the contrary is .the fair construction of the Act. This construction is consonant with other similar statutes, prevents, monopoly, and avoids an absolute prohibition upon new industry where such an intention does not clearly appear in the statute. Cf. United States v. United Verde Copper Co., 196 U.S. 207, 215, 25 S.Ct. 222, 49 L.Ed. 449.
and 2 These Acts were repealed in 1936 (49 Stat. 1106).
Sec. 8(b), 48 Stat. 602.
Sec. . 206, 49 Stat. 785.
Secs. 313(c), 329(b), 334(c), 344(c)(2), 353(b), 52 Stat. 47, 52, 54, 57, 61.
Sec. 302(b).