The opinion
WALLER, District Judge
(dissenting).
The Florida Fertilizer Inspection Statute is a valid exercise of the police power of the State to protect the farmers against the sale of inferior or fraudulent fertilizer.
The Federal Government has enacted no statute for the protection of the purchasers of fertilizer in Florida. Under the Constitution all power not granted to the Federal Government was reserved to the States. Moreover, the power of the State to levy a reasonable inspection fee is expressly provided in Section 10 of Article I:
“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what tnay be absolutely necessary for executing it’s inspection Laws: * * (Italics supplied.)
The right of the State to levy an inspection tax is not merely implied but expressly conferred by the Constitution.
The Congress could not take the power away from the State to levy a reasonable inspection tax. If Congress cannot do so, it follows that the Department of Agriculture cannot do so.
The State is supreme and sovereign in the exercise of its reserved powers. The right to levy an inspection tax is expressly reserved in the State. Therefore, the State is supreme in the exercise of this power.
Congress is supreme in the powers delegated to it, but the right to regulate the inspection of fertilizer or to regulate agriculture was not expressly delegated to the Congress. Whatever power Congress has to regulate agriculture is under the general welfare clause of the Constitution, *558 but the promotion of the general welfare does not call for the striking down of a constitutional power of a State. It is more important that the relations between the State and Federal Governments under our dual system be preserved and left uninfringed than refraining from deducting from a gift to the farmer a reasonable inspection fee levied by the State under the power of the Federal Constitution.
I agree with the majority Court that the State was probably without power to seize property of the United States, to wit, the fertilizer in question, but I consider the seizure as purely procedural. The substantive question is whether or not the Department of Agriculture has the right to procure fertilizer for farmers and thereby permit them to escape the payment of an inspection tax, whereas the vast majority of farmers who are not the recipients of this gratuity will have to pay an inspection tax. It is idle to say that this inspection fee is a burden upon the Federal Government for the reason that since it is a gratuity the Government can, without loss to itself, deduct the amount of the inspection tax from the amount of the benefit to be paid to the farmer, of which the fertilizer distribution is but an advancement.
I do not consider that the inspection fee is a tax, but if it be a tax it is a nondiscriminatory tax and compels no burden to be cast upon the Federal Government.
If it be a tax there is no implication that Congress intended to grant immunity from the payment of the tax. There is no immunity from taxation granted in the Federal Constitution. Immunity proceeds only from the express language of a statute or implications therein. An implied immunity can only be ascertained from the intention of Congress, and the nature and effect of the burden placed upon the Government. See Graves v. People of State of New York ex rel. O’Keefe, 306 U.S. 466, 468 , 59 S.Ct. 595 , 83 L.Ed. 927 , 120 A.L.R. 1466 ; State of Alabama v. King & Boozer, 314 U.S. 1 , 62 S.Ct. 43 , 86 L.Ed. 3 , 140 A.L.R. 615 ; Curry v. United States, 314 U.S. 14 , 62 S.Ct. 48 , 86 L.Ed. 9 .
In the case of Graves v. People of State of New York, ex rel. O’ Keefe, supra, the Court, referring to the decision in the case of Helvering v. Gerhardt, 304 U.S. 405 , 58 S.Ct. 969 , 82 L.Ed. 1427 , said: “ * * * it was there pointed out that the implied immunity of one government and its agencies from taxation by the other should, as a principle of constitutional construction, he narrowly restricted. For the expansion of the immunity of the one government correspondingly curtails the sovereign power of the other to tax, * * (Italics supplied.) [ 306 U.S. 466 , 59 S.Ct. 600 , 83 L.Ed. 927 , 120 A.L.R. 1466 ].
It seems to me that in view of the power of the State expressly conferred by the Federal Constitution to levy an inspection tax, it could not be implied, in the absence of express language in the statute, that Congress intended to exempt the fertilizer in question from the provisions of the valid inspection statute of the State of Florida.
Entertaining the above views I am forced to dissent from the findings of fact and conclusions of law of the majority of the Court.