The opinion
SCHAUER, J.
I dissent from the order directing the trial court to dismiss the action.
The holding of the majority opinion depends essentially upon the premise that the program committee and the Raisin Proration Association were authorized by the Agricultural Prorate Act (Deering’s Gen. Laws, 1937, Act 143a) to pledge surplus-pooled raisins of non-borrowing growers as security for non-recourse loans made to borrowing growers, and, upon default in repayment of the loans, to sell such surplus-pooled raisins of non-borrowers for the account of the borrowers. A necessary subsidiary premise of the majority opinion is that the net loss from the defaulted loans was a proper item of cost of operation of the program and that the pledge and sale of the surplus-pooled raisins was a proper method of providing funds to cover such costs. Neither premise is sound.
Discussing the last mentioned premise first, and conceding only for the purpose of this argument that the net loss from defaulted loans was a proper item of cost of operation, it appears that the method used (the pledge and sale of surplus-pooled raisins) to obtain funds to cover such item is directly violative of express provisions of the act. As to the spread of costs of operation the concluding provision of section 19.1 of the act requires that “The cost of the exercise of such powers as are herein granted to the program committee shall be a part of the cost of the operation of the program and shall be obtained through fees in the same manner as other costs of the program.” (Italics added.) The “other costs of the program” are provided for in sections 20 and 21. Section 20 sets up a system of controlling the quantities of the commodity which individual growers are entitled to produce, and the volume and time of harvesting thereof, through the issuance of “Proration Certificates.” Section 21 provides that “The agent under each zone program shall collect for each certificate issued to the producers, a reasonable and proportional fee to be fixed by the program committee so calculated as to produce the expenses of the administration of the program, the costs of the institution of the program, and a proper pro *815 portion of the cost of the maintenance of the commission....”
It cannot be successfully contended that the program committee has authority to collect costs of operation otherwise than through such fees because, it will be remembered, section 19.1 specifically ordains that “The cost of the exercise of such powers as are herein granted to the program committee shall be a part of the cost of the operation of the program and shall be obtained through fees in the same manner as other costs of the program.” (Italics added.) Certainly the phrase “such powers as are herein granted to the program committee” is inclusive of all powers granted to it.
Returning to the first mentioned premise—that the program committee and the Raisin Proration Association were authorized by the act to pledge surplus-pooled raisins of non-, borrowing growers as security for non-recourse loans made to borrowing growers, and, upon default in repayment of the loans, to sell such surplus-pooled raisins of the non-borrowers for the account of the borrowers—we find that the act not only fails to confer such authority expressly but that it impliedly negatives any such power. The Raisin Proration Association had no powers, material here, not possessed by the program committee. The plan of the act vests the management of the marketing program in the committee. Section 19.1 of the act specifically and exclusively enumerates the powers of that committee.
The section under discussion expressly declares that “The program committee, for the purpose of minimizing the effect of existing surpluses upon market conditions, shall be empowered in any or all of the following particulars:” (italics added), and then follows the enumeration of those particulars. This statute is creative and in such a case it is an unquestioned rule of construction that the enumeration of certain powers is exclusive of all others. (23 Cal.Jur. 740, § 118; 2 Sutherland, Statutory Construction (Horack’s ed. 1943) 414, § 4915; San Joaquin etc. Irr. Co. v. Stevinson (1912), 164 Cal. 221, 234 [ 128 P. 924 ]; Gruben v. Leebrick & Fisher (1938), 32 Cal.App.2d Supp. 762, 765 [ 84 P.2d 1078 ] ; see, also, Johnston v. Baker (1914), 167 Cal. 260, 264-265 [ 139 P. 86 ] ; Moore v. Webb (1933), 219 Cal. 304, 309 [ 26 P.2d 22 , 89 A.L.R. 925 ] ; In re Peart (1935), 5 Cal.App.2d 469, 472 [ 43 P.2d 334 ] ; Brintle v. Board of Education (1941), 43 Cal.App.2d 84, 87 [ 110 P.2d 440 ].) Moreover, the act directs that “Bach producer delivering his surplus to a pool shall be credited for *816 his proportionate share of the surplus so delivered” and that “The program committee shall handle all commodities received by a surplus pool and account for the same on a pooled basis.” (Italics added.) Likewise suggesting the same conclusion is the expressly enumerated power “ (f) To create, maintain and disburse an equalization fund to be used for the removal of any inequalities between producers as to the total volume marketed through prorated channels resulting from errors in estimating production or surplus.” (Italics added.)
As previously mentioned, nowhere in the act is the program committee or other agency expressly authorized to hypothecate (or sell) the pooled surplus of one grower as security for (or for repayment of) non-recourse loans to an- ' other. The absence of such authorization, in the light of the doctrine expressio unius est exclusio alterius, as illustrated and applied in the above cited eases, in itself precludes our interpolating it into the statute. But beyond the mere absence of such authorization the act avows a plan and purpose which might well be defeated by the making of such pledge. As an express proviso to the grant of the power to the program committee “To establish and maintain surplus pools,” the act declares, “provided, however, such surplus shall not be marketed in any form which would directly compete with that part of the crop which is regularly certificated; and provided, further, that any part of any such surplus may be turned over by a program committee to charitable organizations, self-help cooperatives,,and similar agencies under proper safeguards to prevent any part of the commodity so disposed of from directly competing with the part of the crop marketed through the usual channels of trade.” (Italics added.) In the light of the scrupulous care and particularization shown by the Legislature in limiting the power of the committee relative to disposal of the surplus so as to guard against adversely affecting the market for the free crop, it is not reasonable to assume that in the same act the Legislature intended to give the committee unbridled power to hypothecate that surplus and so subject it to the possibility of forced sale in direct competition with the free crop. The mere fact that in this case the program committee secured from the pledgee an agreement that in selling under the pledge it would respect the limitations placed by the act on the committee does not seem to me to satisfactorily bridge the legislative gap. If the Legislature had intended that the com *817 mittee have the mooted power would it not have specified that power and stated requirements for proper safeguards attending the exercise thereof as it did in respect to transfers to charitable organizations? If the committee had the power to make the pledge did it have to exact any safeguards ? The act does not so provide. If not, could this power not result in substantial defeat of the purpose of the act?
I agree with the majority statement that the primary purpose of the act “is to eliminate ‘the unnecessary and unreasonable waste of agricultural wealth’ and to insure to agricultural producers a fair financial return on their crops ‘in the interest of the public welfare and general prosperity of the State’ ” and that “Equally plain is the Act’s contemplation that its purpose would be accomplished by marketing programs which would minimize the ‘ effect of existing surpluses upon market conditions’ and which would provide for the ‘ disposal of such surplus in such manner as to maintain stability in the markets’ ” but I cannot subscribe to the further declaration that “The pledge of the stabilization pool raisins [of non-borrowing growers as security for non-recourse loans to borrowers] was an essential and integral part of the financing plan to withhold the prescribed surplus from the season’s market so as not to glut it and crowd down prices to a point below the cost of production.” Nor can I agree that the costs of operation of the program could be recouped lawfully by sale of the pooled raisins of non-borrowers.
In my view the opinion of the District Court of Appeal (Fourth Appellate District) prepared by Mr. Justice Marks (reported in 140 P.2d 53 ) properly disposes of this appeal and I refer to it for treatment of the other points argued.
The judgment should be reversed and the cause remanded to the trial court with directions to permit the parties to file amended pleadings if they be so advised.
Edmonds, J., and Carter J., concurred.
Respondent’s petition for a rehearing was denied September 28, 1944. Edmonds, J., Carter, J., and Schauer, J., voted for a rehearing.