I am satisfied that the "Suspension Order" of the defendants was not an allotment but a penalty imposed upon the plaintiffs for a violation of the regulations issued by the War Production Board. There is no authority in the statutes for the imposition of a penalty for a violation of these regulations by the War Production Board. The penalty sought to be imposed is one for the benefit of the public, not for a private individual, and such a drastic power will not be implied. Wallace v. Cutten, 298 U.S. 229, 56 S. Ct. 753, 80 L. Ed. 1157; United States v. La Franca, 282 U.S. 568, 51 S. Ct. 278, 75 L. Ed. 551; O'Sullivan v. Felix, 233 U.S. 318, 34 S. Ct. 596, 58 L. Ed. 980. The statute under which the defendants are acting, Second War Powers Act of 1942, § 301, 50 U.S.C.A. Appendix, § 633, provides for criminal proceedings in the courts for the punishing of a violation of the defendants' regulations; I think in view of this provision there is less ground for any construction of this statute that would imply the imposition of penalties by the defendants. The question before the Court is not what are the War powers of the Government but what powers have been vested in the defendants by the Congress.
Nor is there any force in the contention of the defendants that they exercised this power before the statute was amended, and that this departmental practice was impliedly approved, because it was not specifically taken away. But this practice had continued for such a brief period that no presumption of implied approval would arise.
In my opinion the Congress has not authorized the imposition of this penalty upon the plaintiffs, and the motion of the defendants for a summary judgment will be overruled.
The trial of the case on the merits will be advanced for hearing and set for Wednesday, October 6, 1943, at 10 o'clock A.M. The temporary restraining order will be continued as an injunction pendente lite.
As the motion of the defendants has been decided on a question of law, it is unnecessary to pass upon the plaintiffs' motion to strike certain affidavits of the defendants.
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