(dissenting in part).
I dissent from that part of the opinion which holds that this .'Court is without jurisdiction to entertain the complaint because the prosecution against complainants was not for violation of a regulation issued under the Emergency Price Control Act of 1942 and was not brought pursuant to Section 205 of that Act. The Act1 and the Regulations2 prohibit “agreements” to sell in excess of established ceiling prices, as well as sales in excess of ceiling prices. The indictment in this case alleges that the defendants did “conspire, combine, confederate, and agree * * * To sell and deliver * * * domestic distilled spirits * * * in violation of Section 4(a) of the Emergency Price Control Act of 1942 and regulations issued by the Administrator of the Office of Price Administration under authority of said act * * * at prices that were to be in excess of the maximum prices authorized by the provisions of the Emergency Price Control Act of 1942 and the provisions of Maximum Price Regulation 193 Section 1420.13 * * (Italics supplied).
This language, it seems to me, requires our finding that the indictment and the proceedings under it were brought pursuant to Section 205 for violation of the Act and the regulations. The indictment charges expressly that the defendants violated regulations promulgated by the Administrator by agreeing to sell in excess of established *824ceiling prices. An intention to charge a violation of the regulations and the Act is further indicated by the endorsement on the indictment, signed by the United States Attorney and the foreman of the Grand Jury, which states that the indictment is for “Violation of Emergency Price Control Act of 1942, Section 4(a) selling distilled'spirits over ceiling prices * * Since the District Judge, on the basis of the indictment, granted leave to file the complaint now before us and since under Section 204(e) (1) of the Act3 leave to file a complaint in the Emergency Court of Appeals is permitted to be granted only against provisions of a regulation which a defendant is alleged to have violated, it is apparent that the District Court, the tribunal which will pass upon the guilt or innocence of the defendants, is also of opinion that the indictment charges violation of a regulation.
I recognize the correctness of the majority view that a conspiracy to violate a regulation is a separate offense from that of violating the regulation. Moreover, it is undoubtedly true that the indictment against complainants charges conspiracy in addition to the violations which I find charged in it. I have no doubt, however, that under the indictment it would be possible for defendants (for example, in the absence of proof of the overt acts charged) to be found guilty of. violating the regulations. In my view this is ample support for our making a judgment which the District Court has in effect requested, and for our leaving to the District Court ultimate-determination of the significance, of our judgment in the case before it.
Failure of the United States Emergency-Court of Appeals to take jurisdiction to decide the validity of the regulations in the case before us will deprive complainants of a possible defense to criminal charges. The language of the Stabilization Extension Act of 1944 does not compel such a result. Its legislative history, as is well established by the majority opinion of this Court, is directly to the contrary. I therefore am of opinion this Court should determine the merit of complainants’ objections to the validity of the regulations involved in the indictment not by way of obiter dictum, as is done in this case, but by the final judgment entered by the Court.
§ 4(a): “It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity * * * in violation of any regulation * * * or to offer, solicit, attempt, or agree to do any of the foregoing.” (Italics supplied).
Maximum Price Regulation No. 193, § 1420.1: “On and after August 5, 1942, regardless of any contract, agreement, lease or other obligation, no person shall sell or deliver domestic distilled spirits * * * at prices higher than the maximum prices set forth in Appendix A hereof, incorporated herein as § 1420.13; and no person shall agree, offer, solicit, or attempt to do any of the foregoing.” (Italics supplied).
A similar provision appears in § 7.8 of Maximum Price Regulation No. 445.
§ 204(e) (1): “Within thirty days after arraignment, or such additional time as the court may allow for good cause shown, in any criminal proceeding * * * brought pursuant to section 205 involving alleged violation of any provision of any regulation * * * the defendant may apply to the court in which the proceeding is pending for leave to file in the Emergency Court of Appeals a complaint against the Administrator setting forth objections to the validity-of any provision which the defendant is alleged to have violated. * * * Upon the filing of a complaint pursuant to * * • -such leave, the Emergency-Court of Appeals shall have jurisdiction, to enjoin or set aside in whole or in part the provision of the regulation * * * complained of * * *