The opinion of the court was delivered by: KALODNER
Defendants have moved to quash an information charging them with violations of the Second War Powers Act 1942, March 27, 1942, Public Law 507, ch. 199, 77th Cong., Second Sess., 50 U.S.C.A. Appendix, § 631 et seq.
The violations charged were sales and deliveries of refrigerating equipment contrary to the provisions of General Limitation Order L-38, as amended, promulgated pursuant to the powers conferred by the Second War Powers Act, 1942, upon the President of the United States and by him vested in the Chairman of the War Production Board.
General Limitation Order L-38, as amended June 18, 1942
"froze" sale and distribution of refrigerating and air conditioning equipment.
On March 27, 1943 the Order was further amended effective April 6, 1943, eliminating the "freeze" provisions previously allegedly violated by the defendants.
The amendment of March 27, 1943 contained the following saving clause: "(6) (i) Effective date. This order, as amended, shall become and be effective on and after April 6, 1943. It shall not affect, in any way, any liabilities or penalties accrued or incurred under General Limitation Order L-38 prior to this amendment." (Emphasis supplied.)
Parenthetically it may be stated that the violation of the "freeze" order occurred in the latter part of June and in the months of July and August 1942. The information under consideration was filed September 30, 1942.
The motion to quash is premised on the defendants' contention that since the freezing provisions of General Limitation Order L-38 were cancelled by the amendment of March 27, 1943, that the penalty provisions of the Second War Powers Act of 1942 can no longer be enforced.
Section 2(a) (5) of Act June 28, 1940, as amended by section 301(5) of the Second War Powers Act, 50 U.S.C.A. Appendix § 633(5), 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."
In support of their contention defendants rely on the common-law rule that after the expiration or repeal of a law no penalty can be enforced nor punishment inflicted for violations of the law committed while it was still in force. Defendants also rely on United States v. Chambers, 291 U.S. 217, 54 S. Ct. 434, 78 L. Ed. 763, 89 A.L.R. 1210, and McClure et al. v. United States, 3 Cir., 70 F.2d 519.
In the McClure case the United States Circuit Court of Appeals for this Circuit set aside the conviction of the defendants and ordered their discharge on the authority of the Chambers case.
The defendants urge that the Chambers and McClure cases are controlling. Secondly the defendants contend that the War Production Board is merely a regulatory body with authority to make or revoke regulations and that the Board is without authority to declare what act shall or shall not constitute a crime or offense. This argument is directed at the provision of the saving clause of March 27, 1943 of General Limitation Order L-38 which provided that "This Order * * * shall not affect in any way any liabilities or penalties accrued or incurred under General Limitation Order L-38 prior to this amendment."
I cannot subscribe to the defendants' contentions.In my opinion the Chambers and McClure cases are not dispositive of the issues here involved. In the instant case the Second War Powers Act under which the information was lodged has not been repealed as was the Eighteenth Amendment by the ratification of the Twenty-first Amendment in the Chambers and McClure cases. As the Supreme Court pointed out in the Chambers case, 291 U.S. at page 222, 54 S. Ct. at page 435, 78 L. Ed. 763, 89 A.L.R. 1210: "Upon the ratification of the Twenty-First Amendment, the Eighteenth Amendment at once became inoperative. Neither the Congress nor the courts could give it continued vitality. The National Prohibition Act, to the extent that its ...