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." (Emphasis supplied.)
Again in Section 2(a) (8) the President is empowered to exercise his powers "in conformity with any rules or regulations which he may prescribe." Section 2(a) (8) provides: "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." (Emphasis supplied.)
In discussing the problem here involved it must be kept in mind, however, that it is the Act and not the rules and regulations which establishes the crime and fixes the penalties.
The Supreme Court of the United States in United States v. Grimaud, 220 U.S. 506, at pages 517, 519, 522, 31 S. Ct. 480, at page 483, 55 L. Ed. 563, in upholding the constitutionality of a statute authorizing the promulgation of certain administrative regulations and making their violation a crime, said:
"* * * From the beginning of the government, various acts have been passed conferring upon executive officers power to make rules and regulations, -- not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions 'power to fill up the details' by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done. * * *
"That 'Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.' Marshall Field & Co. v. Clark, 143 U.S. , 692, 12 S. Ct. 495, 36 L. Ed. 309. But the authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punished as a public offense. * * *
"A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress. The statute, not the Secretary, fixes the penalty. * * *"
The point at issue, in my opinion, is controlled by the decision of the United States in United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255.
In that case Congress, by Joint Resolution on May 28, 1934, 48 Stat. 811, empowered the President to prohibit by proclamation, sales of arms and munitions to countries engaged in armed conflict in the Chaco. The Joint Resolution further provided that violation of the Presidential Proclamation should be punishable by fine or imprisonment or both.
On the same date that the Joint Resolution was adopted the President issued a Proclamation prohibiting sale of arms and ammunition to Bolivia and Paraguay, No. 2087, 48 Stat. 1744. Subsequently, on November 14, 1935 the President, by proclamation, No. 2147, 49 Stat. 3480, revoked the proclamation of May 28, 1934 as to sale of arms and munitions to Bolivia and Paraguay after November 29, 1935, "provided, however, that this action shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under the aforesaid Proclamation of May 28, 1934, or the Joint Resolution of Congress approved by the President on the same date."
The defendants in the Curtiss-wright case were indicted for conspiracy to sell arms of war in violation of the Joint Resolution and of the Presidential Proclamation thereunder, during the pendency of the Proclamation of May 28, 1934. The defendants demurred to the indictment on the ground that the President had revoked his Proclamation prior to the return of the indictment.
In its opinion the Supreme Court specifically ruled that the revocation of the original Proclamation did not relieve the defendants of liability for offenses committed while it had been in effect. Said the Court, 299 U.S. at pages 331, 332, 57 S. Ct. at page 226, 81 L. Ed. 255:
"It was not within the power of the President to repeal the Joint Resolution; and his second proclamation did not purport to do so. It 'revoked' the first proclamation; and the question is, did the revocation of the proclamation have the effect of abrogating the resolution or of precluding its enforcement in so far as that involved the prosecution and punishment of offenses committed during the life of the first proclamation? We are of opinion that it did not.
"Prior to the first proclamation, the Joint Resolution was an existing law, but dormant, awaiting the creation of a particular situation to render it active. No action or lack of action on the part of the President could destroy its potentiality. Congress alone could do that. The happening of the designated events -- namely, the finding of certain conditions and the proclamation by the President -- did not call the law into being. It created the occasion for it to function. The second proclamation did not put an end to the law or affect what had been done in violation of the law. The effect of the proclamation was simply to remove for the future a condition of affairs which admitted of its exercise.
"We should have had a different case if the Joint Resolution had expired by its own terms upon the issue of the second proclamation. Its operative force, it is true, was limited to the period of time covered by the first proclamation. And when the second proclamation was issued, the resolution ceased to be a rule for the future. It did not cease to be the law for the antecedent period of time. * * *" (Emphasis supplied).
The amendment of the "freeze" provisions in General Limitation Order L-38 in this case is similar to the amendment of the original Presidential Proclamation in the Curtiss-Wright case, and what was said in that case with respect to the effect of the amendment there applies with equal force to the amendment in Order L-38.
Paraphrasing the statement above of the Supreme Court with respect to the second Proclamation, "The second amendment did not put an end to the law (The Second War Powers Act) or affect what had been done in violation of the law."
As pointed out in the Government's brief, the War Production Board has issued more than 500 regulations, followed by hundreds of revisions and amendments promulgated as changing conditions dictated such revision or amendment. Mention is made of this fact since it strikingly illustrates the flexibility and fluidity of the Board's functioning. Such flexibility and fluidity in administration, as has been stated, was intended by the Congress and we must give effect to that intention.
For the reasons stated the defendants' motion to quash the information must be denied. Accordingly I make the following order:
The motion to quash the information is denied.