The opinion of the court was delivered by: MEANEY
The three substantive indictments Nos. 3680-c, 3681-c, 3682-c charge in various counts three types of offenses, viz: (1) unlawfully and contrary to a restriction of the War Production Board commercially using nylon hosiery; (2) accepting delivery of nylon unlawfully and contrary to a restriction of the War Production Board; and (3) willfully delivering nylon yarn without authorization by the War Production Board.
The orders mentioned in the indictment allegedly prohibiting these activities are General Conservation Order M -- 356, which provides in its pertinent part as follows:
(b) (1) 'No person shall sell or deliver nylon except as spcifically authorized in writing by the War Production Board.'
(b) (2) 'No person shall knowingly purchase, accept delivery or commercially use nylon contrary to any restriction of the War Production Board.' and General Limitation Order L -- 274, which in part reads as follows:
(c) (1) 'On and after May 15, 1943, no person shall put into production women's full-fashioned plain-knit hosiery, women's seamless, circular-knit hosiery, men's hosiery, or misses', children's or infants' hosiery except in accordance with Schedules A, B, C, and D, which are a part of this order, or in paragaraphs (c)(2), (c)(3), and (c)(4).'
The fourth indictment charges these defendants with conspiracy involving alleged commercial use of and acceptance of delivery of nylon contrary to restrictions of the War Production Board and delivery of nylon without specific authorization of said Board.
Of the 19 counts in the substantive indictments 11 charge commercial use contrary to a restriction, 3 charge acceptance of delivery contrary to a restriction, and 5 charge delivery without specific authorization.
In the oral arguments directed to this motion and in the briefs filed in support thereof, each indictment was considered and discussed separately. In this opinion the court will consider the substantive indictments together, and the conspiracy indictment separately.
Indictment No. 3682 -- C containing only one count, charges that defendant Paris, Schmidt and Milstein: 'did willfully, knowingly and unlawfully, and contrary to a restriction of the War Production Board, commercially use three cases containing three cartons and five bags of nylon hosiery amounting to five hundred and thirty-nine (539) dozen pairs, to wit, did take and transport the same from the City of Paterson aforesaid to the Borough of Manhattan, in the County, City and State of New York, for delivery to the Manhattan Storage and Warehouse Company, with intent and for the purpose of selling and disposing of the same to dealers and the public; * * * .'
This indictment the defendants attack on the ground that the language of M -- 356 which directs that 'no person shall knowlingly * * * commercially use nylon contrary to any restriction of the War Production Board' is so vague and indefinite that it does not give notice of the acts intended to be prohibited, and is therefore unenforceable and invalid. Moreover, the defendants urge, even if the phrase 'commercial use' were defined or capable of definition, it is not all 'commercial use' which is prohibited, but only such 'commercial use' as may be contrary to a restriction of the War Production Board. This restriction, the government insists' is found in General Limitation Order L -- 274 (supra).
Indictment No. 3681-C is in eight counts. The first three counts, of which count one is representative, charge that defendants Paris and Schmidt: 'did knowingly, willfully and unlawfully and contrary to a restriction of the War Production Board, accept delivery of one hundred (100) dozen pairs of nylon hosiery from the Eagle Rock Knitting Mills, Inc. * * * '
The last five counts of this indictment charge that on various dates the defendants Paris and Schmidt: 'did knowingly, willfully and unlawfully and contrary to a restriction of the War Production Board commercially use * * * ' various quantities of nylon hosiery. The specific acts claimed to constitute commercial use contrary to a restriction of the War Production Board are set forth in the counts as follows:
Count Four charges that the defendants: 'did deliver * * * the said two cartons of nylon yarn for the purpose of having the same knitted into hosiery for sale and ...