Hence there is no duplicity in those counts, giving the language used therein its ordinary signification.
Finally there remains to be weighed the objection of the defendants that since Regulation 169 was revoked by the Administrator and an amended Regulation concerning the same subject matter was promulgated, effective as of a date later than the dates of some specific overt acts mentioned in the conspiracy indictment, therefore the conspiracy charge must fail, and the substantive counts alleging violation of the revoked Regulation must be deemed no longer to charge a crime for which the defendants are liable to prose cution.
The Court feels amply warranted in declaring these objections to be without force. A conspiracy may exist to violate an existing regulation and continue in force for the purpose of violating regulations on the same subject matter effective subsequent to the original formation of the conspiracy. The situation in the instant case, while not identical with, may be deemed analogous to that existing in the case of United States v. Bryant et al., D.C., 245 F. 682, affirmed, Bryant v. United States, 5 Cir., 257 F. 378; and United States v. Wells, D.C., 262 F. 833.
With respect to the motion that prosecution may no longer be pressed on the substantive counts of the indictments for violation of the revoked Regulation 169, without attempting to cover this objection at length, suffice it to say that it would seem effectively to be disposed of by the United States Supreme Court decision in United States v. Curtiss-Wright Export Co., 299 U.S. 304, 57 S. Ct. 216, 226, 81 L. Ed. 255, where the defendants contended that violations of a Presidential Proclamation authorized by a Joint Resolution of Congress were forgiven by a repealer contained in a Second Proclamation issued under the same authority. The Court in passing on this question, parallel to the one under discussion, said:
"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."
Furthermore, considered from a practical standpoint, though there is no saving clause in the Amended Regulation, it would seem that a regulation or order, when made, becomes a part of the Act under the provisions of which it is made, and therefore the Statutory Saving provision, 1 U.S.C.A. § 29, would apply.
There occur to the Court no further grounds for objection to the indictments, which require consideration.
In view of the foregoing reasons, the motions made in the cases here considered, whether in the nature of motions to dismiss, pleas in abatement or pleas in bar, and the relief prayed for in the pleas, are denied.
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