The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
Motions were made herein by Randall, Levett and Crici for arrest of judgment.
The defendants were charged in an indictment with a conspiracy to commit an offense against the United States, to violate Section 2(a) (2) of Title III of the Second War Powers Act of 1942, 50 U.S.C.A.Appendix, § 633, enacted March 27, 1942, and Gasoline rationing regulations, by General Ration Order No. 5C, Section 1394.8177(b) which was issued by the office of the Price Administrator and became effective on November 22, 1942. This is indictment No. 39,043.
The statutes involved are the Act of June 28, 1940, 54 Statutes page 676, Chapter 440, entitled "An Act to expedite the national defense, and for other purposes", as amended by the Act of May 31, 1941, 55 Statutes page 236, Public Act No. 89, 77th Congress, 1st Sess., Chapter 157, as amended by the Second War Powers Act of 1942, Public Law 507, 77th Congress, 2d Sess., Chapter 199, 56 Stat. 176, entitled "An Act to further expedite the prosecution of the war".
Title III of the Second War Powers Act of 1942, which was enacted March 27, 1942, Section 2(a) (2) thereof, provides: "Whenever the President is satisfied that the fulfillment of requirements for the defense of the United States will result in a shortage in the supply of any material or of any facilities for defense or for private account or for export, the President may allocate such material or facilities in such manner, upon such conditions and to such extent as he shall deem necessary or appropriate in the public interest and to promote the national defense."
Subdivision 5 of that section provides: "Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation, or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."
Subdivision 8 of Section 2(a) provides that: "The President may exercise any power, authority, or discretion conferred on him by this subsection (a), through such department, agency, or officer of the Government as he may direct and in conformity with any rules or regulations which he may prescribe."
Pursuant to Executive Order April 7, 1942, No. 9125 (7 Fed. Register 2719), the President conferred upon the Chairman of the War Production Board the power to exercise the authority and discretion conferred upon the President of the United States by Title III of the Second War Powers Act of 1942.
The Second War Powers Act of 1942 authorized the President to allocate material whenever in his judgment, in the interest of national defense, it appeared that there is a shortage in the supply of any material or any facilities for defense, the President is authorized to allocate such material or facilities in such manner and upon such conditions and to such extent as he shall deem necessary or appropriate in the public interest and to promote the national defense.
The President is authorized to exercise these powers through such department or agencies or officers of the Government, as he may direct, and pursuant to Executive Order No. 9125, the President designated the Chairman of the War Production Board to exercise the authority and discretion conferred upon the President.
Section 2 of the Executive Order authorizes the Chairman of the War Production Board to perform the functions, and duties and to exercise the powers, authority, and discretion conferred upon him by either himself or through such officials or agencies and in such manner as he should determine. That is provided in Section 2.
Section 3 provides: "The Chairman of the War Production Board is authorized to delegate to the Office of Price Administration or the Price Administrator such of his functions, duties, powers, authority, or discretion with respect to priorities or rationing, as he may deem to be necessary or appropriate for the effective prosecution of the war; and in the administration or enforcement of any such priorities or rationing"; subdivision (a) of Section 3, states:
"To exercise all functions, duties, powers, authority or discretion with respect to such priorities or rationing in the same manner, and to the same degree and extent, as if such functions, duties, powers, authority or discretion had been conferred upon or transferred to the Office of Price Administration directly by Executive order."
The War Production Board by Directive No. 1, 7 Federal Register, 562, entitled, "Delegation of Authority to the Office of Price Administration with respect to Rationing", provides: "(a) The Office of Price Administration is authorized and directed to perform the functions and ...