inconsistent with the terms and conditions specified in the statute and necessary to effectuate the other provisions of the Order. Sec. 608c(7). The word 'incidental' means minor, auxiliary, or subordinate to a principal or primary subject. A thing incidental to an express provision is dependent or ancillary to it. The term does not comprehend something additional to and independent of the principal subject matter. It relates solely to matters of a subordinate nature inherently forming a part and parcel of the main topic.
Thus, in First National Bank v. Missouri, 263 U.S. 640, 659, 44 S. Ct. 213, 216, 68 L. Ed. 486, the Court stated: ' * * * an incidental power can avail neither to create powers which, expressly or by reasonable implication, are withheld nor to enlarge powers given; but only to carry into effect those which are granted.'
In that case, the Supreme Court held that a statute, 12 U.S.C.A. § 24, vesting national banks with 'all such incidental powers as shall be necessary to carry on the business of banking', did not confer the authority to operate branch banks.
In The Robin Goodfellow, D.C., 20 F.2d 924, 925, the court stated: "Incidental,' obviously, means depending upon or appertaining to something else as primary.'
In Biggart v. Lewis, 183 Cal. 660, 668, 192 P. 437, 440, the court defined 'incidental', as 'having reference to something which is subordinate to and dependent upon and follows the existence of another and principal thing.'
Standard Steel Works Co. v. Williams, 155 Ga. 177, 183, 116 S.E. 636, holds to the same effect.
A provision for making substantial deductions from the equalization pool and paying them to cooperative associations, can hardly be construed as incidental to the other parts of the Orders. It is entirely independent and is of major importance. Moreover, the provision can hardly be said to be 'not inconsistent' with the terms and conditions expressly specified in the statute. The statute provides that the price shall be subject to adjustments only for enumerated factors. There is no provision for an adjustment by way of a deduction in favor of cooperative associations. Finally, it cannot be properly said that the challenged provision is necessary to effectuate the other provisions of the Order. For all of these reasons, the provision assailed by the plaintiffs cannot be justified under this clause of the statute.
Finally, the Government and the intervenor seek to invoke the canon of statutory construction that administrative interpretation of a statute should be given great weight in determining its meaning. This principle no doubt exists, but is inapplicable in the instant case, for two reasons. First, the doctrine has its principal usefulness in situations involving a continuous uniform administrative construction of a statute over a considerable period.
Here there has been a single construction resulting in the promulgation of several orders, all within a comparatively short time. Second, this rule should not be applied to an administrative construction involving the administrator's own powers. Surely it would be a strange doctrine that would permit an administrative officer to extend his own powers in doubtful cases by his own interpretation of the statute. It would be a clear case of lifting oneself by one's own bootstraps
In Interstate Commerce Commission v. Cincinnati, N.O. & T.P.R. Co., 167 U.S. 479, 510, 17 S. Ct. 896, 904, 42 L. Ed. 243, the Supreme Court held that the Commission lacked the power to fix railroad rates, although the Commission had construed the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., as conferring this authority. Mr. Justice Brewer made the following pertinent observations: 'Still again, it is urged that the commission has decided that it possesses this power, and has acted upon such decision, and an appeal is made to the rule of contemporaneous construction. But it would be strange if an administrative body could by any mere process of construction create for itself a power which congress had not given to it.'
The legislative history throws an illuminating light upon the question involved here. In 1940, the Senate Committee on Agriculture and Forrestry recommended that the statute be amended by explicitly providing specific authority for the payment of compensation to cooperatives out of any pool or funds.
The hearings indicate that the additional legislation was requested by the Secretary of Agriculture. This amendment was not enacted by the Congress. It seems clear that the Secretary must have had some doubt as to his power in this matter. Else he would not have asked for supplemental legislation expressly conferring such authority. Nevertheless, in 1941 the Order was issued with the questioned provision found in it
The foregoing discussion leads the Court to the conclusion that in including the challenged provision in his marketing Orders, the Secretary exceeded his statutory authority and that consequently the provision should be adjudged illegal and void and its enforcement should be restrained.
Judgment for the plaintiffs. Counsel will present proposed findings of fact and conclusions of law and a proposed judgment.