In short, Schering contends that this policy was one adopted by the Alien Property Custodian 'for the guidance of the public'.
Of course everything done by the Government in its manifold activities as the servant of the public is of interest to the public in one way or another. So if these words 'for the guidance of the public' are to include all matters of interest to the public in any way, then every single governmental act which is in writing will have to be published -- an obvious absurdity. Of course, what is meant by a policy adopted for the guidance of the public, is a governmental plan or procedure which the public is required to obey or with which it is to avoid conflict.
On the contrary, however, the decision of the Alien Property Custodian, to have the Government either own or control most of Schering's patents, was one primarily affecting the operation of a governmental agency itself, and was not a policy requiring obedience or compliance on the part of the citizens at large. Clearly, this governmental patent policy which had existed for many, many years, was not required to be published by the Administrative Procedure Act.
The fact that the Executive Orders of the President of the United States regarding this policy had been previously published, does not prove that the policy itself had to be published. Such publication occurred because they were Executive Orders.
This final contention of Schering is untenable.
In short (1) the Alien Property Custodian, as the 'one-man' in a 'one-man corporation' had the right, under New Jersey corporation law, to compel Schering, all of whose stock he owned, to do his bidding in corporate form, just as was done in fact. (2) Irrespective of his rights under New Jersey corporation law, the action of the Alien Property Custodian was a valid exercise of his rights under the valid Trading With the Enemy Act, in directing Schering's officers and directors, by the papers they received, executed, and signed, to assign the old patents to him for the use of the Government and its citizens and to freely license the new patents for an arbitrated fee. (3) The Alien Property Custodian's right so to deal with the so-called 'new' patents was in no way affected by the Joint Congressional Resolution terminating hostilities with Germany. (4) The compulsion exercised by the Alien Property Custodian upon Schering in having it execute the paper attached to the Directive was not wrongful duress, but lawful compulsion. (5) Schering 'understood' this lawful Directive and that the Alien Property Custodian was selling the Schering stock owned by him in derogation of his rights, and in the ultimate interest of the Government and the people of the United States. (6) Procedurally, the Directive in question here was the lawful exercise of the administrative authority of the Alien Property Custodian, such exercise being carried out in a lawful form and as to a matter which was not required to be published in the Federal Register. (7) This Court has the power and duty to order Schering to comply with this lawful exercise of the rights of the Alien Property Custodian.
Schering must therefore comply with its written 'promises' of obedience to this Directive of the Alien Property Custodian, which commanded not only 'execution' of the agreement which contained such promises, but their 'performance'. Schering's counterclaim, asking for rescission of such Directive and the agreement it covered, plus the return of any property turned over to the Alien Property Custodian accordingly, does not state a claim upon which relief can be granted.
Plaintiff's motion to dismiss defendant's counterclaim will therefore be granted.