provisions, but completely within their circumscriptions, and this in order to implement the right of the nation to control the national economy for national defense and the preservation of the country.
In the General Conservation Order presently under discussion, the Board is given very broad and far reaching power to grant benefits or to withhold them. It is a general discretionary power without qualification, to be exercised to meet contingencies as they may arise. Needless to say the exercise of the discretion granted therein is limited to the purposes of the delegation, and to a 'sound and legal discretion, excluding all arbitrary, capricious, inquisitorial, and oppressive proceedings.' United States v. Doherty, D.C., 27 F. 730. Action inconsistent with this declaration, and otherwise performed, would be subject to redress in the Courts.
One defendant in his motion addressed to the indictment contests the jurisdiction of the Court, asserting that though the indictment alleges the delivery in New Jersey, it further states that delivery was made by the use of the services of a Common Carrier to whom the goods actually were handed over in the State of Pennsylvania and therefore the forbidden act, if such there was, was done in Pennsylvania and not in the jurisdiction of this Court. If this were true; the validity of these counts of the indictment would depend on the significance of the term 'delivery'. If delivery means transfer of title, these counts of the indictment would in such case fall. But delivery in its ordinary sense and as used herein means transfer of possession to the ultimate intended receiver, and not merely to an agency used for transmission to such ultimate intended receiver. It may be contended that this is too liberal a construction of a criminal charge. However, there still remains the indubitable fact that the indictment charges 'That on or about (a certain date) in the City of Paterson, in the County of Passaic, and the State and District of New Jersey, and within the jurisdiction of this Court, (the defendants Schautz, Paris and Schmidt) did knowingly, willfully and unlawfully deliver (nylon or nylon yarn) * * * ,' nothing in the terminology of the indictments indicating that the defendants did not so deliver as charged, whatever the proofs at trial may indicate. On this motion, no evidence aliunde the indictment may be considered.
There remains for consideration, indictment Number 3679-C which charges defendants Schautz; Paris, Schmidt and Milstein with the crime of conspiracy.
This indictment, in one count, charges that the defendants:
'did knowingly; willfully, unlawfully and feloniously conspire to commit offenses against the United States, that is to say:
'(a) Offenses of selling, purchasing, delivery, acceptance of delivery of nylon, and the commercial use of the same without being specifically authorized in writing so to do by the said Board and contrary to restriction of the War Production Board, and
'(b) To defraud the United States in its governmental function of honestly and fairly conserving nylon for the defense of the United States. * * * '
Defendants direct the same arguments to this indictment and allege the same infirmities as were directed against the substantive indictments.
The determination of the Court insofar as the substantive indictments are concerned is dispositive of these arguments directed against the conspiracy indictment.
Insofar as the indictment charges a conspiracy to commit the offenses of selling or delivery of nylon without being specifically authorized in writing so to do by the War Production Board, the court finds the indictment to be sufficient. The remainder of the allegations of the indictment suffer the same infirmities as those noted heretofore in regard to the substantive counts and as to the remaining portions of indictment 3679-C, the defendants' motions to dismiss are granted.
In addition to the arguments previously raised, the defendants address the further argument against the conspiracy indictment, that there is no crime charged, in that while there is a chrge of 'willful conspiracy' to commit offenses, there is no such allegation of willfulness as to the offenses alleged to have been the object of the conspiracy.
It is the opinion of the Court that the elements of the offenses are alleged sufficiently to apprise the defendants fully of the crimes with which they are charged. The Court finds no merit in the further arguments urged upon it by the defendants in opposition to this indictment.
An order in accordance with the views expressed above may be entered.
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