Best Foods, Inc. v. United States , 42 Cust. Ct. 310 ( 1959 )

Donlon, Judge:

This case has been before the third division several times. On June 26, 1956, we denied defendant’s motion to dismiss the protest. 37 Cust. Ct. 1, C.D. 1791. On December 18, 1957, our decision after trial sustained the protest. 39 Cust. Ct. 305, C.D. 1945. On March 18, 1958, we granted defendant’s motion for a rehearing. 40 Cust. Ct. 494, Abstract 61720. On May 19, 1958, counsel argued orally on rehearing.

The facts are set forth in our opinion in idem, 39 Cust. Ct. 305, C.D. 1945. It is not necessary here to repeat the facts. Nor is it necessary here to restate what was stated in that opinion, which we support and to which this opinion is supplemental. We proceed to consider the grounds argued by defendant on rehearing in support of his plea for judgment dismissing the protest.

These arguments may be briefly summarized. They are, first, that the court has too narrowly construed the authority which Congress granted to the President in section 22 of the Agricultural Adjustment Act to “modify” his prior proclamation, under the same section, of a quota on imported peanuts, contending that the power to modify a prior quota proclamation includes the power newly to impose a “fee,” or special duty, on quota peanuts; and, second, that an importer of quota peanuts is without standing to raise the issue that the fee which the collector exacted on importation of quota peanuts was an unlawful exaction.

It is well established that, in interpreting statutory language, it is the duty of judges to seek out and apply the legislative intent. There are a great many cases in which many courts have construed “modify” or “modification” in a particular context. Much has been written in judicial opinions which spelled out the legislative iutention in the context of the language being construed. It is unnecessary, as well as unprofitable, for us extensively to discuss the variety of such decisions. They differ, as the facts differ.

However, this much is plain. None of the decisions cited to us or which our own research disclosed, either when writing our previous opinion or after rehearing, goes so far as to hold that, within the congressional power granted to the Executive to modify a previously proclaimed quota according to a prescribed procedure, there is included the power also to impose a new fee on the quota commodity where previously there was no fee, and where Congress has prescribed a quite different procedure for the imposition of a fee. In our opinion, none of the cases defendant cites comes even close in analogy to such a broad interpretation of “modify,” as Congress used that word in section 22(d) of the Agricultural Adjustment Act (cited in our principal opinion, 39 Cust. Ct. 305, C.D. 1945). It is section 22, and only section 22, which we are called upon to construe.

As we pointed out in C.D. 1945, Congress granted to the President, in section 22 of the Agricultural Adjustment Act, two different authorities which he was to •exercise relative to commodity quotas or commodity fees. It prescribed separately, as to each of the authorities so conferred, the particular procedure by which he was to exercise that power. These procedures are different. One, the authority that is spelled out in section 22(b), is the power to impose by proclamation a fee or a quota. (We pass, for later attention, whether the disjunctive, as here used by Congress, is in effect the conjunctive, as defendant asserts that it is.) The other authority is conferred, not in section 22(b), but in section 22(d). That is the power to suspend or terminate a previous proclamation imposing a quota or , fee, or to modify it (i.e., the prior quota or prior fee proclamation, as the case may be) “whenever he [the President] finds and proclaims that changed circumstances require such modification to carry out the purposes of this section.”

Nothing in the cases which defendant cites persuades us that Congress intended to confer on the President, in section 22(d), the power to impose either a quota or a fee. That is the power Congress granted to him, by express language, in section 22(b). The method prescribed by which he was to exercise the power of imposing a quota or a fee is a different method, and somewhat more formal, than the method Congress prescribed for exercise of the section 22(d) power to modify a quota or fee previously proclaimed. If Congress had intended that the President might impose a quota or a fee under the pretext of modification, and using the simpler procedure which Congress prescribed for modification of an existing quota or an existing fee, the language Congress used to express this intention seems curiously inept. However, we find nothing vague about the statutory language in this respect. There is no need, in our opinion, to infer that Congress meant something it did not say. What it said is clear. A fee or a quota might be imposed under section 22(b), using the method prescribed by Congress for exercise of the authority to impose. An existing fee or an existing quota might be modified under section 22(d), using the method prescribed by Congress for exercise of the authority to modify.

We rule against the construction for which defendant argues. It lacks support in the authorities. Moreover, it reduces to unmeaningful ambiguity the clear statutory separation stated by Congress in the separate subsections of section 22, as to the two different authorities conferred on the Executive by that section, namely, authority to impose under section 22(b) and authority to modify under section 22(d).

It is not for courts to make the law. As earlier observed, our duty is to ascertain what Congress intended, and to apply that intention to the facts before us in a particular case. Here, the congressional intention, both as to initial imposition and as to subsequent modification of what previously had been lawfully imposed, is clear.

Defendant’s second argument on the rehearing is that, since plaintiff has imported peanuts under the modified quota which was proclaimed by the President on March 9, 1955, it may not challenge the legality of the fee exacted by the collector under purported authority of that same proclamation. The basis of this argument, as stated in defendant’s brief, is that one who has accepted benefits of an unconstitutional law may not be heard to object to the burden imposed by that same unconstitutional law.

It seems to us there is little here to argue about. It is a well-established principle of law that one cannot be heard to attack the constitutionality of a statute or act which he has invoked and relied on, unless the provision that is constitutional is severable from the provision that is unconstitutional. That is to say, courts will not pass upon the issue of constitutionality at the instance of one who has availed himself of the benefits of what he attacks as unconstitutional, unless the constitutionally defective part can be separated from what is not unconstitutional.

The only customs case defendant cites is George G. Wislar v. United States, 26 C.C.P.A. (Customs) 138, C.A.D. 7. The facts are summarized in defendant’s brief (p. 20) as follows:

* * * the importer claimed a rate of duty under a Trade Agreement authorized by the Trade Agreement Act of 1934 (Section 350 of the Tariff Act of 1930, as amended) and at the same time claimed that the power given the President to suspend rates of duty, made pursuant to Trade Agreements, as to countries discriminating against the United States was unconstitutional as an improper delegation of authority. [Emphasis supplied.]

The views of the appeals court in the Wislar case are shown in an excerpt from the opinion, as quoted in defendant’s brief (p. 20):

As to appellants’ contention to the effect that the generalization clause operated, by reason of the agreement with Sweden, to repeal the 77}i cents per dozen rate on files, it seems sufficient to say that no such theory could be sustained except by holding the proviso separable from the first part of the clause and unconstitutional, while at the same time declaring the validity of the first portion. In our opinion, this may not be done, and since a holding that the entire clause, or the entire act, is unconstitutional would utterly destroy appellants’ case, we are not called upon to consider that question. [Emphasis supplied.]

Neither in defendant’s brief, nor in oral argument on rehearing, has defendant suggested how we are to bridge the gap between the facts in the cited cases, having to do with the defect of unconstitutionality, and the facts here presented where there is no such defect. Here, there is no slightest suggestion that the Executive action under consideration is tainted with unconstitutionality. Indeed, it seems unlikely that anyone would now seriously assert that the authority for the President to proclaim a modification of the previously proclaimed peanut quota was an unconstitutionally delegated legislative authority, as was asserted in the Wislar ease. There is here no suggestion that Congress lacked constitutionally the power to delegate these authorities to the President, or that it failed properly to safeguard its grant of authorities, that is, by prescribing the methods by which the President was to exercise the powers and the limits of the authorities granted. On any usual constitutional ground that comes to mind, there is no constitutional issue here.

If defendant’s research has disclosed cases in support of his argument, in which attack was on the legality of administrative action and not on constitutionality, the brief does not refer us to such cases. There is, of course, a wide difference between what is unconstitutional and what is merely unlawful.

What is unconstitutional is void. It does not exist. Therefore, in order to salvage anything from an unconstitutional act, it must be clearly established that there is something constitutional which may be severed, that is, which is not void.

Here, the action of the President is clearly not within the constitutional grant of powers to the Executive. The Constitution expressly confers on Congress all authority with respect to the regulation of foreign commerce. When Congress, acting constitutionally, has granted to the executive branch of Government certain specified and limited powers to act with respect to what Congress alone has authority to do, the constitutional issue does not arise in connection with subsequent Executive action under the statute. What does arise, is the question whether the Executive action is defective in any respect as not falling within the statutory grant.

An importer has, of course, no inherent right to sue the Government for correction of any wrong he thinks the Government has done to him. The right to sue, where it exists, was conferred on him by Congress. Plaintiff is here as the importer of certain peanuts (importers being expressly named in section 514 of the Tariff Act of 1930), protesting a decision of the collector, not in its entirety but only in part. Plaintiff does not protest the assessment of regular duties, as we pointed out in our prior decision. Plaintiff does ask the court, the constitutionality of the law under which the Executive has proceeded not being in question, to inquire judicially into the correctness of the Executive action exacting a fee under the purported authority of section 22 of the Agricultural Adjustment Act.

This is the principle laid down in Kleberg & Co. (Inc.) v. United States, 21 C.C.P.A. (Customs) 110, where (at p. 115) the appeals court said:

It is equally well established by the authorities that if the Secretary of the Treasury has proceeded in the method prescribed by the Congress, we may not judicially inquire into the correctness of his conclusions. The constitutionality of the law under which he proceeds having been once determined, then the judicial power extends only to a correction of his failure to proceed according to and within the law. [Emphasis supplied.]

In United States v. Sears, Roebuck & Co., 20 C.C.P.A. (Customs) 295, our appeals court said (pp. 304, 305):

We have hereinbefore held that no legislative power is delegated by said section 336. We are unable to understand upon what theory the lower court holds that in carrying out the provisions of said section 336 the President acts in a judicial capacity. Under our tariff laws it is the duty of the collector to classify all merchandise for the assessment of duty, but we would scarcely suppose that the lower court would hold that in so doing the collector acts in a judicial capacity. His action is subject to judicial review, but such review is of an administrative act, not a judicial one. Likewise, the acts of the President in performing the duties imposed upon him by said section 336 are administrative, not judicial; and, as hereinbefore stated, judicial review of such acts may be had for the purpose of determining whether he has exceeded the powers delegated to him.

We find that in issuing the proclamation here in question the President did not exceed the authority conferred upon him by the provisions of said section 336 of the Tariff Act of 1930, and that the merchandise herein involved is properly dutiable at the rates named in said proclamation. [Emphasis supplied.]

That the President’s proclamation was an administrative act and not legislative, is likewise supported in the customs ease of Field v. Clark, 143 U.S. 649.

Being an administrative act, it is our duty, on protest duly filed under section 514, to consider whether or not the administrative act was in excess of the authority conferred on the Executive by Congress. This plaintiff is in no different position, in this respect, than are the many importers who regularly protest part but not all of the decisions in particular liquidations. To hold that they may not protest one administrative act unless they protest all of the acts related to a liquidation, would nullify for many importers the clear right Congress has given them, to have a judicial review for the purpose of determining whether the Executive has, in a particular case and with respect to a particular act, exceeded the powers conferred by Congress.

We had supposed, until the rehearing, that defendant had tongue in cheek when it argued that plaintiff had no standing to protest the fee because it imported the peanuts on which the fee was assessed. In oral argument, on rehearing, defendant affirmed and amplified its position in this respect. The following statement by defendant’s counsel to the court indicates awareness that defendant’s position might be thought to deprive plaintiff of the substantial right it has to test in court an illegal administrative act, and suggests somewhat impracticable methods for plaintiff to preserve that right. We quote from the record on rehearing (R. 14, 15), defendant’s counsel speaking:

It might be asked, “How otherwise would he claim that it was wrong for the President to do it?’ ’ He can do it in two ways, very simple. While the quota was still open he could have tendered an entry of five pounds of peanuts, and refused to pay the two cents a pound, and then he could have protested, and his protest would have been heard right in this Court, that the Collector had no right to refuse his entry, because the President had no right to put both a quota and a fee on the peanuts. He would then be in the position where he had not accepted the benefits of one part of the act and attack the other part as unconstitutional.

By the same token, he could have waited until after the quota was filled. Then he could have offered the Collector an entry of peanuts with the two cents a pound, and again, have protested the refusal of the Collector to accept that entry, on the ground that the President could not put a quota on and at the same time increase or put a fee on. He was perfectly willing to pay the fee, but the Collector would not accept it. So he would have been in the Court, and he would not have been in the position where he is now, that he has accepted all the benefits of the act, and he is asking you here, “We have done this, but we don’t think that we should pay the two cents a pound.” [Emphasis supplied.]

Here, again, defendant assumes that plaintiff’s attack on the imposition of the fee rests on a complaint that, while the quota modification was constitutional, the fee imposition was unconstitutional. The plaintiff does not make this complaint. In any event, and on defendant’s assertion of such claim, we hold there is no issue here as to constitutionality.

The methods defendant’s counsel urges, quoted above, by which plaintiff might, in defendant's view, have safeguarded its right, under section 514, to test the legality of an administrative act, are not quite so completely protective as defendant appears to think.

Defendant has often moved in this court for dismissal of protests on the ground that the collector’s assessment had not yet been paid. It is interesting to find defendant now arguing that importers may decline to pay an assessment and, nevertheless, proceed to judgment in this court on protest. Moreover, there could be no right to import 5 pounds of quota peanuts and challenge the legality of the fee on them, if there is no right to import 219,973 pounds of quota peanuts and challenge the fee on them. We know of no legal theory supporting such distinction.

The second suggestion advanced by defendant’s counsel appears to imply that plaintiff would contend that the fee is lawfully imposed but that the quota modification is unlawful. If there is one thing quite clear, it is that plaintiff’s contention is the exact reverse.

This should dispose of the argument, but it may be as well to point out, also, how unlikely it was that plaintiff could obtain final decision in a test case in time to import further quota peanuts within the crop year.

The peanut quota as modified by the proclamation of March 9, 1955, was for a crop year ending June 30, 1955. So eager was this plaintiff (and other importers, as well) to litigate promptly the issue now before us, that protest was filed at once after entry and without waiting for the collector to liquidate. This protest the defendant moved to dismiss, in open court, on the ground that it was filed before there was any decision of the collector that could be protested under section 514. We granted defendant’s motion, and the early protest was dismissed. Idem, 37 Cust. Ct. 1, C.D. 1791.

This entry was not liquidated by the collector until July 8, 1955, after the expiration of the quota year. (The President, on May 16, 1955, extended the quota year 1 month, from June 30, 1955, to July 31, 1955, and terminated the quota. T.D. 53808.) The importer, having already filed the prompt protest to which defendant objected as premature, had a period of 60 days after the collector made his decision, on July 8, 1955, within which to avail itself of the statutory right of protest. Protest was filed July 25, 1955, only 17 days after liquidation.

By administrative act beyond control of this importer, liquidation was deferred until a date which helped to make it impossible for a test to be decided before the end of the quota year. It is now nearly 4 years after the collector’s liquidation, and there is not yet a final decision of the issue.

There are several issues which we refrain from deciding, because the basis of our decision makes it unnecessary to do so. Two of these will be mentioned, without deciding them.

Defendant argues that it was the congressional intention to delegate to the President authority to impose with respect to importations of a basic commodity and for the same crop period, both a quota and a fee. Congress used the disjunctive “or,” saying the President might impose a quota or a fee. There has been a long history of Executive action imposing either a quota or a fee, but not (except for the proclamation now before us) both a quota and a fee. It seems doubtful, to say the least, that Congress intended, as defendant urges, the conjunctive authority to impose both at one time as to the same commodity.

The use of the disjunctive by Congress in the statutory grant of authority, together with the circumstances of the action taken, tend to support the argument that the two provisions of the proclamation are indeed severable. This, in our opinion, it is not necessary to decide, for we hold that there is no issue as to constitutionality and that there is the right to judicial review as to whether the administrative act was or was not lawful.

The great respect rightly owed to the presidency and the deference due the President should not divert courts from their duty to protect litigants against the consequences of administrative acts, at any level, which are beyond the scope of authorization. Ours is a Government of laws and not of men, and courts have a major responsibility to keep it so.

Nothing on the rehearing has caused us to reverse our prior decision. Except as herein supplemented or modified, our prior opinion is affirmed. The same judgment previously entered for plaintiff will again be entered.